Bess v. Ulmer

985 P.2d 979, 1999 Alas. LEXIS 107, 1999 WL 619092

Opinions

OPINION

MATTHEWS, Chief Justice.

1. INTRODUCTION

Citizen groups challenged three ballot propositions to amend the Alaska Constitution because the propositions were revisions not amendments; revisions can only be accomplished through a constitutional convention. In an expedited Preliminary Opinion and Order we held that Legislative Resolve No. 59 (relating to prisoners’ right’s) is a revision, and struck it from the ballot.¹ Legislative Resolve No. 71 (limiting marriage) and Legislative Resolve No. 74² (relating to apportionment) are amendments, and therefore could appear on the ballot, though we disallowed a portion of No. 71. This opinion reaffirms and amplifies our Preliminary Opinion and Order.³

II. FACTS AND PROCEEDINGS

The superior court granted summary judgment in favor of the State defendants and the Legislative Council, entering final judgment on September 8, 1998. This court granted expedited consideration and heard oral argument on the case on September 18,1998. On September 22, 1998, we issued a Preliminary Opinion and Order, striking Legislative Resolve No. 59 (restricting the rights of Alaska prisoners to those guaranteed by the federal constitution), allowing in part and deleting in part Legislative Resolve No. 71 (limiting marriage to the union of one man and one woman), and allowing Legislative Resolve No. 74 (transferring the power of reapportionment from the Executive branch to a Redistricting Board).

III. STANDARD OF REVIEW

[lj The parties agree that there are no material issues of fact before the court. Because the present case involves a question of law, we review the grant of summary judgment de novo and “adopt the rule of law that is most persuasive in light of precedent, reason, and policy.”⁴

IV. DISCUSSION

We based our expedited Preliminary Opinion and Order on the fact that the Constitution of the State of Alaska can be changed in only two ways — amendment and revision — and that a separate procedure must be followed for each. To amend the Constitution, the proposed change must be passed by a two-thirds vote of each legislative house and then approved by a majority of the voters.⁵ The Constitution may be revised by constitutional convention.⁶ By holding that Legislative Resolve No. 59 was a revision, and as such inappropriate as a ballot measure, we adopted the view that the Constitution “can be neither revised nor amended, except in the manner prescribed by itself, and the power which it has conferred upon the legislature in reference to proposed amendments, as well as to calling a convention, must be strictly pursued.”⁷

The objective of this opinion is to elucidate the distinction between amendatory changes and revisory changes, to provide some guidance for future endeavors to change the Constitution.

The Framers of the Alaska Constitution distinguished between a revision and an amendment. Like scholars and other framers in other states, they intended this distinction to be substantive. We conclude that a revision is a change which alters the substance and integrity of our Constitution in a manner measured both qualitatively and quantitatively.

A. Revision and Amendment

The Framers of Alaska’s Constitution explicitly contemplated the importance of the differentiation between amendments and revisions and between their respective fields of application.⁸ In debating the text of article XIII, section 4, one constitutional convention delegate stated “[tjhere is a big difference between revisions, which implies rewriting the constitution, and making amendments to specific articles or sections of the constitution.” ⁹ Although no precise definition of the terms was reached by the Framers (perhaps because such a task is not possible), there was consensus that “amendment” contemplated a simple change, whereas “revision” would encompass broader and more comprehensive changes.¹⁰ The Framers also understood that “[rjevision includes amendment but amendment does not include revision.”¹¹ In recognition of these distinctions, the Framers fashioned more stringent procedures for adopting revisions than for adopting amendments.

As first proposed to the convention, article XIII allowed revisions and amendments to be adopted by two successive legislatures.¹² Delegates offered changes during floor debate distinguishing between revisions and amendments. Delegate Cooper proposed a change allowing revisions to be adopted by a two-thirds vote of two successive legislatures, a constitutional convention, or a three-fourths affirmative vote of a single legislature.¹³ Under this proposal, amendments were to be adopted by a popular, three-fifths majority vote.¹⁴ As ultimately passed, article XIII retained procedural distinctions for adopting revisions and amendments, but specified constitutional conventions as the only available avenue for revisions.

The Framers’ decision to narrow the alternatives for adopting revisions by making constitutional conventions the sole permissible procedure demonstrates not only their awareness of the distinction between revisions and amendments, but also their desire to give the distinction substance, thereby ensuring that it would be observed by future generations of Alaskans.

Scholars have also concluded that a distinction exists between the two methods of constitutional change. Judge John A. Jameson, in his Treatise on Constitutional Conventions, wrote that the legislative process of amending a constitution should be confined to “changes which are few, simple, independent, and of comparatively small importance,” whereas a constitutional convention is required for “a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion.”¹⁵

Judge Jameson’s examples of topics properly considered “amendments” include changes designed to address “a doubt ... as to the construction to be put upon a particular clause[,] ... or a new distribution among the agencies of government of their constitutional powers ... to facilitate the transaction of business, or to render public operations more safe or more economical.”¹⁶

One purpose of requiring a constitutional convention for revisions of the constitution is to promote stability.

Some political thinkers have interpreted the written constitution in the American political system as a stabilizing element which operates to retard change or requires a more deliberate selection of what changes society deems desirable, hence acceptable. As a document embodying the fundamental political beliefs of the people and an accepted general arrangement of governmental powers, there is indeed good reason to examine searchingly any major changes proposed in the basic structure and philosophy.[¹⁷]

Another purpose is to provide a specialized body of citizens whose sole purpose is to consider the constitution as an organic whole, and to make the appropriate and necessary changes.

[CJomplete revisions or even alterations of a very thorough character should be made by conventions expressly chosen for that purpose. Legislatures will usually have their time taken up with other matters and be unable to devote sufficient time to [the] subject, and the election of a body for the one purpose concentrates public attention upon questions of a constitutional character.[¹⁸]

According to Judge Jameson, constitutional changes of a magnitude which can only be accomplished by a revision are not a task for the legislature:

The legislature is a body chosen for temporary purposes. It is a mirror of political passions and interests, and, with the best intentions, cannot be expected to be free from bias, even in questions of the highest moment. It is composed, moreover, in general, of politicians rather than of statesmen .... But, when a Convention is called, it is sometimes possible to secure the return of such men. It is not necessarily because such a body is recognized to be, as it is, the most important ever assembled in a State, but because the measures it is expected to mature bear less directly on the interests of parties or of individuals. Party management, therefore, is not usually so much directed to the seeking of control of a Convention as of a legislature. Besides, the proper function of the latter body, that of municipal legislation, being one of the highest vested by the sovereign in any governmental agency, it cannot but be inexpedient, on a general view, that there should be added to it that of organic legislation, requiring different and higher gifts, and wider experience and study, thus threatening to unsettle the balance of the Constitution.[¹⁹]

The case law of other states which have similar constitutional provisions that distinguish between amendments and revisions is in accord with the scholarly writing. The courts have held that constitutions which provide for both processes of amendment and revision express a distinction of substance.²⁰ The Supreme Court of Florida described one aspect of the distinction by stating that amendments “originate in the legislature and the people have the choice only of acceptance or rejection of the ones the legislature submits,” while in the case of revision “[t]he people’s delegates, elected for the purpose, ... weigh proposed provisions, debate their merits, [and] decide what should become and what should not become the organic law.”²¹ The same court later held that the power to amend the constitution (as distinct from the power to revise it) “includes only the power to amend any section in such a manner that such amendment if approved would be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose.”²²

B. California’s Resolution of the Issue

As the Framers of the Alaska Constitution did not sufficiently define the difference between the two concepts for our purposes, and because Alaska has not before had occasion to address the deceptively simple question of the distinction between revisory and amenda-tory changes, it is helpful to look to the law of California, a state which has considered the issue carefully over a period of nearly one hundred years. A line of California Supreme Court cases, beginning with Liver-more v. Waite,²³ has outlined the parameters of the procedures for constitutional change in that state. The Livermore court described the importance of adhering to strict procedures for revising and amending the California Constitution.

Under the first of these methods the entire sovereignty of the people is represented in the convention. The character and extent of a constitution that may be framed by that body is freed from any limitations other than those contained in the constitution of the United States. If, upon its submission to the people, it is adopted, it becomes the measure of authority for all the departments of government, — the organic law of the state, — to which every citizen must yield an acquiescent obedience .... The legislature is not authorized to assume the function of a-constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment.... The very term “constitution” implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicated the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term “amendment” implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.[²⁴]

The California Supreme Court relied heavily on Livermore when it decided McFadden v. Jordan²⁵ more than a half-century later. McFadden concerned a proposed “amendment” to the California Constitution. The amendment was designed to add a new article, composed of two hundred and eight subsections, totalling more than twenty-one thousand words.²⁶ The court rejected the proposed amendment because it was so “far reaching and multifarious” as to amount to a revision.²⁷

The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for ,the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendato-ry article. There is in the measure itself no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, altered, replaced or repealed.[²⁸]

Four cases on the same topic followed McFadden.29 In three of those cases the California Supreme Court decided that challenged proposals to amend the state constitution were not impermissible revisions.³⁰ Amador Valley v. State³¹ concerned Proposition 13, which proposed a new article, dramatically changing California’s system of property taxation.³² After discussing Liver-more and McFadden, the court went on to state that the -method for distinguishing between amendments and revisions “must be both quantitative and qualitative in nature.” ³³

For example, an enactment which is so extensive in its provisions as to change directly the “substantial entirety” of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, ... an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.[³⁴]

The court held that Proposition 13 was neither quantitatively nor qualitatively revi-sory in nature, despite the fact that it accomplished “substantial changes” in the tax system.³⁵

In Brosnahan v. Brown,36 the California Supreme Court applied this quantitative/qualitative analysis in holding that the proposition known as the “Victims’ Bill of Rights” was not an illegitimate revision.³⁷ The court concluded that the “substantial changes” the proposal would accomplish failed to amount to a sufficiently “far reaching change! ] in the nature of [the] basic governmental plan as to amount to a revision.”³⁸

Finally, in Legislature of the State of California v. Eu,39 the California Supreme Court addressed a proposed amendment designed to limit “the powers of incumbency” by providing for term limits and restrictions on legislators’ retirement benefits.⁴⁰ Although the court recognized that “[t]erm and budgetary limitations may affect and alter the particular legislators and staff who participate in the legislative process,” it held that “the basic and fundamental structure of the Legislature as a representative branch of government is left substantially unchanged” and therefore the proposal was not a qualitative revision of the constitution.⁴¹

Less than a year before Eu was decided, the California Supreme Court had applied the quantitative/qualitative analysis to a challenged initiative measure and reached a different result in Raven v. Deukmejian,⁴² At issue there was a proposal entitled the “Crime Victims Justice Reform Act,” designed to limit the rights of criminal defendants to those guaranteed by the federal constitution.⁴³ To that end, the measure contained a section that provided that certain criminal law rights “shall be construed by the courts of [California] in a manner consistent with the Constitution of the United States” and that the state constitution “shall not be construed to afford greater rights” than those afforded by the federal constitution.⁴⁴ The Eu court later noted that the proposal in Raven (in contrast to that in Eu) was one that “would have fundamentally changed and subordinated the constitutional role assumed by the judiciary in the governmental process.” ⁴⁵ In other words, the amendment would affect a core function of one of the three branches of government, an outcome expressly forbidden by Amador Valley.46

The California Supreme Court based its holding in Raven solely on the qualitative effect of the proposed amendment:

As a practical matter, ultimate protection of criminal defendants from deprivation of their constitutional rights would be left in the care of the United States Supreme Court. Moreover, the nature and extent of state constitutional guarantees would remain uncertain and undeveloped unless and until the high court had spoken and clarified federal constitutional law.

In effect, [the proposed amendment] would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect.[ ⁴⁷]

The court specifically stated that the proposed amendment did not have a quantitatively revisory effect, as it “delete[d] no existing constitutional language and it affect[ed] only one constitutional article,”⁴⁸ but concluded that qualitatively it was “so far reaching as to amount to a constitutional revision beyond the scope of the initiative process.”⁴⁹

C. The Alaska Rule and Its Application to the Three Challenged Ballot Measures

The Constitution of Alaska, like that of California, provides different procedures for different methods of constitutional change.⁵⁰ In deciding whether the proposal is an amendment or revision, we must consider both the quantity and quality of the proposed constitutional changes. We agree with the reasoning of the California Supreme Court in Livermore, McFadden, and Amador Valley that

an enactment which is so extensive in its provisions as to change directly the “substantial entirety” of the constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof [while] even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.[⁵¹]

The process of amendment, on the other hand, is proper for those changes which are “few, simple, independent, and of comparatively small importance.”⁵² The core determination is always the same: whether the changes are so significant as to create a need to consider the constitution as an organic whole. With this in mind, we turn to an evaluation of each of the three challenged ballot measures.

1. Legislative Resolve No. 59

This measure proposed to amend the Alaska Constitution by adding a new section to article I, providing as follows:

Rights of Prisoners. Notwithstanding any other provision of this constitution, the rights and protections, and the extent of those rights and protections, afforded by this constitution to prisoners convicted of crimes shall be limited to those rights and protections, and the extent of those rights and protections, afforded under the Constitution of the United States to prisoners convicted of crimes.

This proposal bears an obvious similarity to the initiative measure at issue in Raven.53 Like the Raven court, we find the proposal to “amount to a constitutional revision beyond the scope of the [ballot] process,”⁵⁴ although our reasoning differs somewhat. The Raven court held that the proposal constituted a qualitatively revisory change to the constitution, but not a quantitatively revisory change.⁵⁵ We take a hybrid approach. Not only would the proposal, for the reasons stated in Raven, “substantially alter the substance and integrity of the state Constitution as a document of independent force and ef-feet,”⁵⁶ but as we held in the Preliminary Opinion and Order, it also would potentially alter as many as eleven separate sections of our Constitution. Both qualitatively and quantitatively, thei-efore, Legislative Resolve No. 59 is an impermissible constitutional revision.

2. Legislative Resolve No. 71

This measure proposed to amend the Alaska Constitution by adding a new section to article I providing as follows:

Marriage. To be valid or recognized in this State, a marriage may exist only between one man and one woman. No provision of this constitution may be interpreted to require the State to recognize or permit marriage between individuals of the same sex.

Under our hybrid analysis, this proposed ballot measure is sufficiently limited in both quantity and effect of change as to be a proper subject for a constitutional amendment.⁵⁷ Few sections of the Constitution are directly affected, and nothing in the proposal will “necessarily or inevitably alter the basic governmental framework” of the Constitution.⁵⁸

3. Legislative Resolve No. ⅞

This ballot measure was designed to alter the reapportionment scheme of article VI of the Alaska Constitution, concerning House and Senate districts. The Framers of the Alaska Constitution gave the power to reapportion the legislative districts to the executive branch, to be used as a check against legislative power.⁵⁹ Legislative Resolve No. 74 removes this power from the executive and assigns it to a neutral body.⁶⁰ Reassigning this power is unquestionably a significant change in the present system of Alaskan government. It does not, however, deprive .the executive branch of a “foundational power,” and as a result does not constitute a revision.⁶¹ As the quantitative effect of the proposal is minimal, the qualitative force of this narrow change would have to be greater to satisfy our hybrid test. The essential function of the executive branch — to enforce the laws of the state — remains unchanged, as does its structure. No executive power is delegated to either of the other two branches. In fact, the intent of the Framers in giving the reapportionment power to the executive was primarily to prevent the abuse or neglect of that power in the hands of the legislature, rather than to safeguard a uniquely executive function.⁶² Historically, the “method [of delegating reapportionment power to the legislature itself] was a total failure” so the Framers delegated it to the executive “in order to assure that the reapportionment will be made and that there will not be neglect.”⁶³

This proposal, unlike Legislative Resolve No. 59, does not “fundamentally changef] and subordinate[ ] the constitutional role” of any branch in the governmental process.⁶⁴ Therefore, although the proposed change is substantial, it is not so “far reaching and multifarious” as to comprise a revision.⁶⁵

V. CONCLUSION

We REAFFIRM the Preliminary Opinion and Order.

1 . Appellant Bess challenged Legislative Resolve No. 59 in briefs to the superior court and to this court. The State and Legislative defendants did not respond to the argument that the resolve, considered individually, constituted a revision.

2 . Appellant Bess challenged Legislative Resolve No. 74 in briefs to the superior court and to this court. The State and Legislative defendants again failed to respond to the challenge.

3 . Our Preliminary Opinion and Order is attached as an appendix. It has been edited.

4 . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

5 . See Alaska Const, art. XIII, § 1.

6 . See id. at § 4. Amendments may also be accomplished by convention. See id.

7 . McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787, 789 (1948) (quoting Livermore v. Waite, 102 Cal. 113, 36 P. 424, 425 (1894)).

8 . Cf. Adams v. Gunter, 238 So.2d 824, 831 (Fla.1970) (quoting McFadden, 196 P.2d at 796-98) (noting "differentiation ... between [the] two procedures and between their respective fields of application.”).

9 . 2 Proceedings of the Alaska Constitutional Convention (PACC) 1247 (January 5, 1956).

10 . See id. at 1274-77.

11 . Id. at 1275.

12 . 6 PACC App. V at 21-22 (December 9, 1955).

13 . 2 PACC at 1242.

14 . Id.

15 . Judge John A. Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding §§ 540, 574(c) (Chicago, Callaghan and Company, 4th ed. 1887).

16 . Id. at § 540.

17 . Public Administration Service, 3 Constitutional Studies: Constitutional Amendment and Revision 1 (November 8, 1955).

18 . Walter F. Dodd, The Revision and Amendment of State Constitutions 261-62 (1910).

19 . Jameson, Constitutional Conventions at § 539.

20 . See, e.g., Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713, 725-26 (1964); Holmes v. Appling, 237 Or. 546, 392 P.2d 636, 638-39 (1964).

21 . Rivera-Cruz v. Gray, 104 So.2d 501, 503-04 (Fla.1958). See also State v. Manley, 441 So.2d 864, 877 (Ala.1983) (Torbert, C.J., concurring) ("The people of this State, through their Constitution ..., have decreed that they reserve, in revising or replacing the Constitution, a role much more active than merely passing upon a proposal someone else has written.”).

22 . Adams v. Gunter, 238 So.2d 824, 831 (Fla.1970).

23 . 102 Cal. 113, 36 P. 424 (1894).

24 . Id. at 426.

25 . 32 Cal.2d 330, 196 P.2d 787 (1948).

26 . Id. at 790.

27 . Id. at 788.

28 . Id. at 796-97.

29 . These cases are: Legislature, of the State of California v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991); Raven v. Deukmejian, 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077 (1990); Brosnahan v. Brown, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274 (1982); Amador Valley Joint Union High School Dist. v. State Board of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 (1978).

30 . See Eu, 286 Cal.Rptr. 283, 816 P.2d at 1318; Brosnahan, 186 Cal.Rptr. 30, 651 P.2d at 288-89; Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1284-89.

31 . 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 (1978).

32 . Id. 149 Cal.Rptr. 239, 583 P.2d at 1283.

33 . Id. 149 Cal.Rptr. 239, 583 P.2d at 1286.

³⁴

35 . Id. 149 Cal.Rptr. 239, 583 P.2d at 1286-87, 1289.

36 . 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274 (1982).

37 . Id. 186 Cal.Rptr. 30, 651 P.2d at 276, 288-89.

38 . Id. 186 Cal.Rptr. 30, 651 P.2d at 288-89 (quoting Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1286).

39 . 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991).

40 . Id. 286 Cal.Rptr. 283, 816 P.2d at 1312.

41 . Id. 286 Cal.Rptr. 283, 816 P.2d at 1318.

42 . 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077 (1990).

43 . Id. 276 Cal.Rptr. 326, 801 P.2d at 1079, 1080-83.

44 . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086.

45 . Eu, 286 Cal.Rptr. 283, 816 P.2d at 1318.

46 . 149 Cal.Rptr. 239, 583 P.2d at 1286 ("[A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.").

47 . Raven, 276 Cal.Rptr. 326, 801 P.2d at 1087 (emphasis in original).

48 . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086-87 (emphasis omitted).

⁴⁹

50 . See discussion at page 982, supra.

51 . Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1286.

52 . Jameson, Constitutional Conventions at § 540.

53 . 276 Cal.Rptr. 326, 801 P.2d at 1086.

⁵⁴

55 . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086-90.

56 . Id. 276 Cal.Rptr. 326, 801 P.2d at 1087.

57 . Our Preliminary Opinion and Order deleted the second sentence of Legislative Resolve No. 71 on other grounds. Appellants expressed concern that the language could be interpreted to permit the prosecution of individuals involved in marriage-like relationships without the benefit of state sanction, and ,thal this risk might discourage religiously sanctioned marriage ceremonies. Appellees questioned the need for deletion, contending that the language was mere surplusage, hut conceded at oral argument that this court has the power to order deletion. We explained our decision to order deletion as follows:

We do not believe that language which is sur-plusage should be part of the constitution. Of special concern is the possibility that the sentence in question might be construed at some future time in an unintended fashion which could seriously interfere with important rights. As decades pass, the legislative history of the resolve may fade from memoiy. Further, court decisions lack the permanency of constitutional language and may be overruled. The objective of the second sentence — harmonization of other provisions of the constitution with the meaning of the first sentence — will be achieved in any event, for a specific amend-men! controls other more general .provisions with which it might conflict. [See] Johns v. Commercial Fisheries Entry Comm’n, 758 P.2d 1256, 1264 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184, 1190 (Alaska 1983).

58 . Brosnahan, 186 Cal.Rptr. 30, 651 P.2d at 289.

59 . See 3 PACC 1839 (January 11, 1956)("[S]tu-dents and writers seem generally in accord that reapportionment ... has been neglected where it has been left to legislators.”).

60 . The power to draw the boundaries of the House and Senate districts thereby passes from the governor, with the advice of a reapportionment board of his own appointment, to a five-member Redistricting Board, two members of which are appointed by the governor and one each by the House Speaker, the Senate President, and the Chief Justice of the Supreme Court.

⁶¹

62 . Though the Framers assigned the reapportionment power to the executive branch, there are statements in the Proceedings of the Constitutional Convention that indicate that assigning the power to an independent board would be a rational, relatively uncontroversial alternative. See 3 PACC at 1859, 1863.

63 . 3 PACC 1858 (January 11, 1956).

⁶⁴

65 . Cf. Brosnahan, 186 Cal.Rptr. 30, 651 P.2d at 288-89; Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1284-89.