This matter deserves a vote, but the state’s supreme court isn’t allowing one.
California is booming. With a vibrant agricultural sector, vigorous commerce, and above all an innovative and highly profitable tech sector, the state’s economy has surpassed that of Great Britain. If California were a country, it would have the fifth-highest GDP in the world.
For some, this boom has produced great wealth. According to Forbes, 124 billionaires live in California; there are only 93 in New York and 48 in Texas. And the GDP per capita of Silicon Valley, the heart of this high-tech powerhouse, is the third-highest among metro areas worldwide (after Zürich and Oslo).
But the robust economy is causing difficulties for many in the middle class and bringing hardship to those in lower income categories, especially through a spiraling cost of living and a scarcity of affordable housing. According to a study by CALmatters, California’s poverty rate, adjusted for the cost of living, is the highest in the country. And there is a greater number of homeless in California than anywhere else in the country.
On top of all that, California has the highest income tax in the country, which is helping to entice some in the middle class to leave for other states where costs are more manageable, as well as regressive sales and gasoline taxes that burden less affluent citizens. Moreover, those revenues are not spent appropriately — for example, on the deteriorating infrastructure — as another of California’s problems is the expensive and inefficient public-education system. The state government represents the will of special interests more than that of the public.
After the Second World War, California was the land of opportunity, abundance, and upward mobility. No longer. And one aspect of the problem is the state’s size.
California occupies just over half the west coast of the United States, with a land surface larger than that of Germany. The highest population concentration is in the San Francisco–Sacramento area, extending south along the coast to the Mexican border, while the rest of the state is much less densely populated. Moreover, there are economic and political disparities between those regions, with the economy of the urban liberal coastal counties based on commerce and manufacturing, while the small-town and rural population elsewhere is more conservative and agricultural. But the coastal counties, thanks to their far higher population, dominate the politics of California, imposing their policy preferences on the rest of the state.
It is no wonder that the special interests, the politicians, and the bureaucrats who now have a stranglehold on state government and finance would resist such a move.
One possible solution is to divide California into multiple states, with the lines drawn to reflect these divides. This is what Tim Draper intended to do with a ballot initiative, Cal 3. But the state supreme court pulled it off this year’s ballot, citing constitutional concerns. If it survives the ongoing legal challenge, it will appear in 2020 instead.
It is no wonder that the special interests, the politicians, and the bureaucrats who now have a stranglehold on state government and finance would resist such a move. They and their supporters in the media act as if there were something radical or unreasonable about this proposal. Yet a brief look at history shows that this is by no means unreasonable or radical, but is consistent with the way our federal union has functioned from the start.
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The first states were the original 13 colonies, and the first unifying document was the Articles of Confederation, which stipulated that the new states would retain the same power and sovereignty they’d had as colonies under British rule. It soon became clear, however, that such arrangements imposed restrictions on the central government that rendered it ineffectual. In 1789 the Constitution created a federal union in which power is divided between a strong central government and the states.
The first new state added to the union was Vermont. The region had been in dispute in colonial times, claimed by both New Hampshire and New York. After independence it became an independent entity, and was finally admitted to the union as the 14th state in 1791. After that, the nation incorporated new land by taking on territories; once the population of a territory reached 60,000 and its political and economic patterns had been established, it was divided into separate states. The assumption here, in part, was that in the interest of democratic representation, the new states should reflect the diversity of the population.
The first was the Old Northwest Territory, which eventually became the Midwestern states. The same system was used in variations in the South, as well as in the West. For example, the Dakota Territory was administered by the federal government from 1861 to 1889, when it became the states of North and South Dakota; the dividing line was determined by trade routes and population size. Another example is the Oregon Territory, which was split into the states of Oregon, Washington, and Idaho. The only territories that came into the union as single states were the Southwest Territory, which was admitted as Tennessee in 1796, and Alaska and Hawaii, which entered the Union in 1959 as the 49th and the 50th states.
There were, however, two states that entered the Union without going through the territorial phase. One was Texas, which won its independence from Mexico in 1836 and was governed as an independent republic until its admission to the union in 1845. The second was California, which also had been a part of Mexico. After the American victory in the Mexican War of 1846–48, California became an occupied country ruled by military governors through the Mexican institutions that had prevailed at the start of occupation. This arrangement was described at the time as an “inefficient mongrel” unable to administer civil government efficiently and to maintain law and order as conditions drastically changed.
The Gold Rush attracted people from all over the United States, as well as from other countries. The population skyrocketed, rising from 2,000 non-native inhabitants before 1848 to around 15,000 in late 1849 and 20,000 in 1850. In 1849 the military governor, Bennet Riley, recognizing that military rule was impractical under those conditions, called a convention in Monterrey to let the people decide for themselves on the issue of statehood and other matters.
The non-native population of Southern California was mainly Hispanic: the Californios, who had lived there since 1769, first under Spanish and later under Mexican rule. The chief occupation of the region was ranching, and among the ranchers were wealthy cattle barons. As landowners, the Californios would have to pay taxes for California as a whole if it became a state — i.e., they would pay to meet the very different needs of the mining- and commercial-based Anglo-American population in the north. Also, the land-hungry Americans felt that the large Spanish and Mexican land grants, still valid during the occupation, should be broken up as spoils of war. The Californios therefore preferred territorial status, where the cost of administration would be borne by the federal government and the terms of land ownership would be protected.
The Americans in the north, however, preferred statehood. As a compromise, Southern California rancher José Antonio Carrillo proposed that land north of San Luis Obispo become a state and the rest of California a territory. This would have followed earlier procedures in dealing with the incorporation of new land. But with their demographic preponderance, the mining and commercial Anglo Americans in the north prevailed, and California bypassed the territorial phase. After a heated debate in Congress in 1850, it became the 31st state in record time.
Assemblyman Andres Pico introduced a bill in the legislature in 1859 to divide California into two states: The north would remain the state of California, while the south would become the Colorado Territory.
The division of preexisting states is permitted under Article VI, Section 3, of the U.S. Constitution. The division must first be approved by the state legislature and then by both houses of Congress. Such division, however, has occurred only three times.
The first was the creation of Kentucky, a land that was originally a part of Virginia. In the late 18th century, products and trade routes differed between trans-Appalachian Kentucky and Piedmont-and-Tidewater Virginia — and great distances, mountains, and troubles with Native Americans made mobility between the two regions difficult anyway. Separation therefore made sense; Virginia consented to the division in 1788, and in 1792, Kentucky became the 15th state.
The other two examples were related to slavery and the Civil War. Before the war, Congress tried to preserve an equal number of free and slave states, so when the District of Maine sought to break off from the state of Massachusetts and join the Union as a free state, the South demanded the addition of Missouri as a slave slate. (These states were added in 1820 and 1821 respectively.) And when Virginia seceded in 1861 and joined the Confederacy, its western region decided to remain in the Union, eventually becoming the new state of West Virginia.
California almost joined the crowd. Once it had become a state, the Californios in the south objected to the inevitable inequity of taxation and land laws. In order to address those concerns, Assemblyman Andres Pico introduced a bill in the legislature in 1859 to divide California into two states: The north would remain the state of California, while the south would become the Colorado Territory. The measure, known as the Pico Act, was approved in a referendum in the south with 75 percent of the vote. With Californio support, and that of pro-slavery whites who also lived in the rural southern part of the state, the bill passed the legislature and was signed by the governor, who sent it to Washington for congressional approval. But the secession crisis was reaching a critical point at that time, and Congress never acted on the measure. It was soon forgotten in the tumult of the Civil War.
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The broader issue was not forgotten, though: There have been a number of proposals to divide California since. In the late 19th century there was serious talk of splitting the state at the Tehachapi Mountains. The reason was difficulty in transportation, so the discussion ended with the development of motor vehicles and the construction of I-5 over the Tejon Pass. In 1941 there was a proposal to combine the northern counties of California with the southern counties of Oregon to form the new state of Jefferson. (In 2013, voters in Siskiyou and Modoc Counties voted to join such an entity if it is ever established.)
In 1965, state senator Richard Dolwig proposed to split the state into north and south. His measure passed the senate by a vote of 27–12, but the assembly killed it in committee. The next attempt was a bill introduced in 1996 by Assemblyman Stan Stratham that would have divided California into three states (north, central, and south). In 2011, Riverside County supervisor Jeff Stone proposed to separate some of the southern counties from the rest of the state, but his proposal was met with derision in Sacramento.
Other proposals would have split the state vertically. In 2009, former assemblyman Bill Maze proposed to separate the coastal counties that extend from San Francisco and Sacramento south to San Diego. (There was talk of the 120th meridian as the boundary, the kind of straight-line border that deliniates the northern edges of Nevada and California.) The purpose was to free the more conservative counties inland from the dominant liberal coastal counties. A similar proposal, “New California,” is also in the works. Its advocates are now working to enlist support within each of the 58 counties for its introduction in the legislature.
And in 2016, Tim Draper tried a new tactic, taking the issue directly to the people via ballot initiative. He proposed to break up California into six states but failed to collect enough signatures to qualify it for the ballot. His latest proposal, of course, would divide California into three states. If passed, new arrangements for the three states would be worked out in a manner similar to the organic acts of earlier times and then sent to Congress for approval. Enough signatures were collected to qualify the proposal for the November 2018 ballot, and until July it looked as if Proposition 9 would go before the voters — though polling suggested it was a long shot.
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The special interests wasted no time in opposing it, not through a campaign to convince voters to reject the measure, but by taking the matter to unelected judges. The Planning and Conservation League, a Sacramento-based environmental lobbying group, filed suit to have the measure removed from the ballot. The state supreme court’s response was a unanimous decision for removal, writing that there are “significant questions regarding its validity” and complaining of the “potential harm” that might be done if the electorate were given the chance to make a decision on the matter.
To be sure, it is a valid question whether a ballot initiative can replace the legislature in the process of splitting the state. The opposition argues that, under California law, only statutes and constitutional amendments can be passed by initiative, not changes to the very nature of the state constitution — for if the state were split, the current constitution would no longer be in force. They further argue that an initiative would not meet the requirements of the federal Constitution, under which the state’s “Legislature” must endorse a split.
Regarding the latter, a counterargument might be that at the time of the writing of the Constitution, legislatures were the only means by which the will of the people could be exercised. The question is, should the intent of the Constitution — that a split must go through a state’s official legislating process — be the guiding principle, or the exact wording? Changing conditions are often cited for rulings that contrast with the wording of the Constitution, so there would be nothing new in such an argument.
The initiative, along with the referendum and the recall, was designed to give citizens some degree of control over public policy.
Another argument against the initiative is the cost that would be involved — though this is an argument against passing the initiative, not against allowing the people to vote on it. The United States of 2018 is very different from the United States of 1916, when Arizona became the last territory in the lower 48 to become a state. Government has grown since then, and separation would be far more complex than in the past. Then again, perhaps government programs could be more rationally administered by smaller units, each with its different regional needs.
One legal observer, William Vogeler (of the blog California Case Law), has described the Supreme Court decision as an “unusual preemptive strike” in which six lawyers have trumped 18 million voters. This ruling is irregular, since questions of validity are normally addressed after an initiative has passed, and if it does not pass, the issue is moot. One wonders what harm letting the measure stay on the ballot would cause. It has been suggested that one “harm” might be to the status of the judges in a tripartite division of California.
California’s initiative process began as a Progressive-era measure designed to counter the influence of special interests, in particular the Southern Pacific Railroad — “the Octopus” — which controlled everything in California, including the legislature, the courts, and the press. The initiative, along with the referendum and the recall, was designed to give citizens some degree of control over public policy. Preventing Proposition 9 from appearing on the ballot is a clear departure from this tradition.
The initiative should be allowed to go forward. Efforts such as this one are expressions of concerns and discontent by people living in a state that never went through the territorial phase, and whose government does not serve its entire population equally.
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