CA120: Political intrigue: BOE’s redistricting and the gas tax

Capitol Weekly | April 18, 2018 – 

Whether you liked it or not, the California Board of Equalization successfully blocked a gas tax increase last month.  This saved Californians 4-cents per gallon at the pump, but handed Gov. Jerry Brown and lawmakers a $617 million hole in the state budget.

What caused this rather dramatic policy move?  Some could point to controversies regarding the power being taken from the board, or the recent gas tax increase passed by the Legislature.

But I keep being coming back to the extraordinary events surrounding the 2011 redistricting of the BOE, which has four directly elected members.

The initial lines drawn by the California Citizens Redistricting Commission were an attempt to balance the state’s diverse community in the four districts – a challenge for sure.

But the lines were drawn and there wasn’t a lot of controversy — at least not until observers realized that these new lines would likely give the board a 3-1 Democratic advantage, rather than the existing 2-2 partisan split, with the state controller — currently Democrat Betty Yee — serving as the fifth vote on the board.

Effectively, this 3-1 advantage for Democrats meant that the single Republican member would be out-numbered on any partisan vote, where a 2-2 split with a Democratic fifth vote would mean that Democrats have a majority, but one single flip of a Democrat could change the outcome.

Enter Jerome Horton, who has referred to himself as “Mr. 41”.

“Mr. 41” is a play on the number of votes in the 80-member State Assembly needed for a majority vote. Horton’s practice was to often not vote on an issue, leaving his vote open. Then, with the approach of the close final tally, he would weigh in — or not, depending on the issue — and often wind up as the deciding vote. He used this tactic to build considerable political capital, showing the public and colleagues that he couldn’t be taken for granted on any issue

Now at the Board of Equalization, Horton knew the score. If the board was 3-1 Democratic, that would neuter him. He couldn’t be a deciding vote on anything as the Democratic majority could pass any rule or measure without his support.

To ensure that Horton could keep this ability to cast the deciding vote, he and allies in the business community came up with a redistricting play. They enlisted Republican consultants Matt Rexroad and Chandra Sharma to attempt a “Hail-Mary” to get a last minute re-write of the board’s electoral districts, with the hope of returning the BOE to an equal partisan split.

Rexroad and Sharma used many of the tools that had been used in other redistricting efforts.

They began by cobbling together a coalition of individuals from groups that hadn’t ever been before the redistricting commission. They drafted and submitted an alternate plan created by Sharma, and presented these lines from concerned citizens at a public hearing.

The lines were submitted on June 23 — the next to last day of line-drawing.

These lines were not accepted, with the rationale that the plan disadvantaged small pockets of ethnic communities in a few different parts of the state. But this view drew complaints about the logic of the commission’s analysis.

So on June 24, at the very last hearing in which lines were drawn, Rexroad jumped in head first.

The issue was the now defanged Section 5 of the federal Voting Rights Act.

Section 5 had the potential to blow up the entire redistricting process, and Rexroad knew this was the great fear of the commission.  If the Department of Justice didn’t approve of one single line in the commission plans, the entire process would be handed over to the courts, and their months’ worth of work could be thrown in the trash.

He took the commission’s concerns about their BOE submission, and the extremely small reductions in Asian and African American voting strength, and used it against them.

His leverage was in the commission’s percentage of Asians in Monterey County in the plan they were about to adopt, and the nearlyimperceivable drop in a district that includes one-quarter of the state’s population from 20.12% Asian to 19.12% and from 5.74% African American to 5.06%.

This was laughable.

No Justice Department review would throw out an entire state redistricting plan based on a tiny reduction in the Asian and African American voting population, particularly when it wasn’t anywhere near the traditional “majority minority” of 50% or more of one ethnicity.

This tiny difference in voting power would have absolutely no expected impact on the outcome of an election. And the inclusion of the small amount of Asians and African Americans in Monterey County is more of a Section 5 side note than a massive voting rights concern.

In fact, not one of the many Asian or African American voting rights groups that had long studied and spoken out on each redistricting plan had brought up these concerns. The first mention of it was from Rexroad and his last-minute coalition.

The result of this engagement from Rexroad and Sharma was amazing. As the commission transcript shows, without much push-back, commissioners opened up a full state map. Between discussions of travel plans, some side joking, and questions about who could give others rides to the airports, the commissioners and staff started drawing.

In less than an hour, they had transformed lines, live-drawing on a big overhead screen, right in front of Rexroad and his team. Advocates on the other side were silent, or completely absent.

The commission was attempting to make changes to deal with this ethnic population issue, but the astute observers in the room knew what was really happening as the new plan quickly was converted from a 3-1 Democratic advantage, to a 2-2 split.

For those interested in watching the process unfold, the videos of the June 23 and June 24 hearings are preserved online, including the entire redraw of the BOE lines which takes less than an hour.

But, back to the vote last month.

In a 3-2 vote, with Jerome Horton as the swing, the Board of Equalization voted for a multi-million dollar tax cut. And I am drawn back to these transcripts and videos as evidence of the actions that  that gave Horton the power he needed to thumb his nose at the governor and Democrats in Sacramento.

And I am drawn back to these transcripts and videos as evidence of the actions that gave Horton the power he needed to thumb his nose at the Governor and Democrats in Sacramento.

Rexroad and Sharma gave political leverage to “Mr. 41.”  And his blocking a $617 million dollar tax increase becomes the greatest direct impact on public policy that can be directly tied to the 2011 California redistricting.

This tale is also a warning for 2021: the impacts of redistricting can have very real consequences, and while the commission process has taken redistricting out of the hands of politicians, it can’t remove some of the politics.

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