Since 1965, northern California has not had adequate representation in the state legislature. The most expeditious way to restore representation to the counties of northern California is to create a new state with those counties that want representation restored. The most active effort today is the “Jefferson” state movement which is using the legal method of engineering a state split through the formula required by Article IV Section 3 of the US Constitution.i This formula necessitates a greater than 50% majority of both houses of the state legislature and Congress approve the split in order to create a state out of an existing state or states.
In order for “Jefferson” to be successful, three tenets must be completed or verified. First, counties that want to be part of the new state must have their Supervisory Boards Declare and Petition to Separate from California and join the new state (Declarations) which creates standing for each of those counties. Second, financial viability for the new state must be validated. Third, the state and national legislative actions outlined above must achieve a majority result.
As of January 1, 2015, six counties have Declared and Petitioned to Separate from California and join the new state of “Jefferson”. Both the California Legislative Analyst’s Office (LAO) and an internally generated financial model have shown that “Jefferson” is a viable entity. By the end of January 2015, six counties will have had their Declarations filed with the Secretary of State of California which could initiate the legislative phase of state separation. The legislative action will be delayed long enough to determine if additional counties would like to join the new state. There are 14 additional counties that have active committees trying to educate the public and reach their supervisors with the message of republican based representation which is guaranteed in Article IV Section 4 of the US Constitution.
A basket of Supreme Court Case known collectively as Reynolds v. Sims diluted the representation in rural counties in thirty states in 1964.iii Up until that decision, California had roughly one state senator for each county. This was consistent with the Connecticut Compromise as implemented in Article I Sections 2 and 3 of the US Constitution where the House of Representatives is determined by population and the Senate is comprised of two individuals from each state ensuring small or less populous states have an equal footing in Congress.iv The Warren Court in 1964 invalidated this form of government for thirty states by manufacturing the doctrine of “one man, one vote” from the 14th Amendment which used population as the sole arbiter of representation in both houses of the state legislature.
The California state senate became a mirrored representation structure of the assembly. Roughly six senators and assemblymen come from the twenty northern most counties of California while 35 of 120 come from Los Angeles County alone as shown in Exhibit 2. As go the large population centers, so goes the entire state. For nearly fifty years, adequate representation has not existed for the counties of northern California.
Creating the new state requires a number of defined steps to be achieved. Declarations and Petitions to withdraw from the State of California and join the new state of “Jefferson” must be made by the
counties who want to be involved and these must then be filed with the Secretary of State of California. Once filed, legislation must be crafted that acknowledges the Declarations, the participants and the boundaries of the new state. Financial viability must also be proven that shows both the counties and the state have enough funding to sustain them.
The Declaration component is a critical step in the formation of a new state. The key to the language contained within the Declaration defines the grievances borne by the county, the desire to dissolve its relationship with California and join the new state and the legal description of the physical boundary of the county. The combination of these elements creates standing for each county. Standing is the first component required for any judicial action. An example of a Declaration is attached as Exhibit 1.
If the State of California by refusing to draft legislation or failing to pass legislation authorizing the separation of the counties that have Declarations, creates the condition referred to as harm and triggers the second element for judicial action. Using the basis that the counties have standing and now have been harmed, the courts can adjudicate the issue and provide a remedy for the lack of representation for the counties.
The remedy could be additional representation in proportions that would make the California legislative houses unwieldy (over 1200) or bring back one senator for each county. Using the formula proposed by George Washington in 1787 where one for 30,000 was democracy and one for 40,000 was tyranny; there would be 1,266 members of the California Assembly.v Knowing the potential judicial outcomes may stimulate a constructive response in the California legislative houses.
The California legislature drafts a bill that acknowledges the Declarations filed by the counties and determines the boundaries of the new state. After drafting the legislation, both the California Senate and Assembly must pass the measure with a majority in each house. If the measure fails in one or both houses, then Scenario 1 above would be the next course of action.
Assuming the California state legislature does pass the measure in both houses, similar legislation must be drafted and passed in both houses of Congress. Once this occurs, the new state would legally exist and a state constitution would need to be drafted. Again, failure to pass legislation in Congress would trigger judicial action outline in Scenario 1 above.
The financial viability has been demonstrated by two separate studies. The first was the result of the failed Six State Initiative that produced the LAO report on financial viability of the new six states.vi Although not the wealthiest of the six states, Jefferson had a projected financial outlook similar to the State of New Mexico. The second study conducted resulted in a Variable Jefferson Viability Model that uses the population, tax rates, tax collections, county budget expenditures and K-12 education expenses for the proposed 20 counties and includes a payment plan to reimburse California for its portion of the debt owed by the population of “Jefferson”. vii The model allows the user to include/remove counties, adjust tax rates and tax splits between the new state and its counties. The base model uses the current California tax structure and demonstrates that the new state is viable on day one.
The formula to create a new state as outlined in Article IV Section 3 of the US Constitution is fairly simple but achieving the end result requires dedication and a thorough understanding of all parties involved.
“Jefferson” must be shown to be a win-win for both the new state and California. For “Jefferson”, representation would be restored and how it chooses to govern itself will be determined within its borders. What remains of California will be two-thirds of its original land mass but greater than 95% of its population. This should enable the California legislature and governor’s office to be more efficient and effective in creating and executing laws that directly relate to the population they govern. The concentrated urban centers would benefit from a government that is familiar with the issues and solutions required of an increased population density. Those within “Jefferson” face completely different challenges that would best be met by those who share similar circumstances.
The steps to achieving a legal separation are currently underway. As of February 17, 2015, seven counties have Declarations and 13 additional counties are in various stages of completing that goal. Two separate studies have found “Jefferson” to be a financial viable entity. After compiling all the Declarations from all the counties that seek to become part of “Jefferson”, legislation will be authored and a majority in the California Senate and Assembly must pass the measure. If successful, Congress must perform the same steps as the state legislature.
In the absence of successful legislation at the state or national level, the issue would be adjudicated in the courts where the remedy defined in the cases related to Reynolds v Sims will require review and constitutionally valid solutions enacted. If a republican form of government as guaranteed in Article IV Section 4 of the US Constitution and applied in Article I Sections 2 and 3 of the US Constitution are sufficient for the federal government, then they should be successfully applied at the state level as well.
It is the preference of those seeking the new state of “Jefferson” to work with our local, state and federal representatives to achieve an amicable state split as defined by the US Constitution and required by Article 2 Section 1 of the California Constitution.viii It would be regrettable to all parties to have this issue decided in our court system where it would most likely affect the legislative operations in thirty or more states.
i US Constitution, Madison, Morris, Sherman, et al. 1787, http://www.archives.gov/exhibits/charters/constitution_transcript.html
ii US Constitution, Madison, Morris, Sherman, et al. 1787, http://www.archives.gov/exhibits/charters/constitution_transcript.html
iii Reynolds v Sims, 377 U.S. 533 (1964), https://supreme.justia.com/cases/federal/us/377/533/case.html
iv US Constitution, Madison, Morris, Sherman, et al. 1787, http://www.archives.gov/exhibits/charters/constitution_transcript.html
v A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875, http://lcweb2.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=649&itemLink=D?hlaw:1:./temp/~ammem_EbLL::%230020650&linkText=1
vi California Legislative Analyst’s Office, Report on Six State Viability, January 2014, http://www.lao.ca.gov/ballot/2013/130771.aspx
vii Jefferson Viability Model, http://www.soj51.net/finances
viii California Constitution, http://www.leginfo.ca.gov/.const/.article_2