Op-ed: How to see through the fog of redistricting

By Barbara Gilbert

Barbara Gilbert is a longtime Berkeley resident and Council observer with a particular interest in the City budget, public safety, and land use. She is active in several community organizations, including NEBA, Berkeley Budget SOS, and the Committee for FACTS.

Detail of the BSDC map, one of several under consideration for Berkeley.

Detail of the BSDC map, one of several under consideration for Berkeley.

Berkeley’s current redistricting process is a foggy mess.  For readers, I’ll try to clear some of the fog by, first, presenting a timeline of pertinent events and then offering my take on these events.

REDISTRICTING HISTORY 

1986—District elections established by voter initiative and enshrined in City Charter in response to perceived left v. moderate chaos and neighborhood unfriendliness of at-large Council elections.  Boundary lines drawn for eight Council districts. These lines were to provide the template for future boundary adjustments in conjunction with population changes evidenced in the decennial censuses.

1990 Census—Minor boundary adjustments.

2000 Census—After contentious wrangling which delayed redistricting beyond the December 31, 2001 legal deadline, a redistricting plan was adopted with mostly minor adjustments to boundaries except for the transfer of some Northside student voters and the Hearst Avenue business district from District 6 to campus District 7.  Grumblings of discontent from student representatives who wanted more students overall in District 7.

2004—Measure I approved by 72% of Berkeley voters amending charter to provide for Ranked Choice Voting for Mayor and Council.

2008—Measure II charter amendment adopted by voters extending redistricting deadline to December 31 of the 3rd year following the decennial census, starting with the 2010 census.

2010 Census Through Today

March 2011—2010 Census data released.  Shows 9% population increase over ten years, from app. 102,800 to 112,600 residents.  Increase is largely students (the impact of Berkeley’s vastly increasing student population is the subject for another article).   Each Council district must now encompass about 14,000 residents, up from about 13,000.  Under existing lines, all district populations deviate substantially from the 14,073 ideal—ranging from a 4.90% to an 18.12% deviation or a 692 undercount in District 2 to a 2550 overcount in District 7.

2011—Using Charter guidelines, Council calls for map submittals and attempts to finalize adjusted district lines by April of 2012 in time for November 2012 Council election of four councilmembers.   Students claim they are a neglected “community of interest” and need to have a coherent “student district” (Student District). Various plans submitted by community groups, notably by the Berkeley Student District Campaign (BSDC), aligned with the Bates Majority in Council (Bates– Mayor, Capitelli–District 5, Maio–District 1, Moore–District 2, Wengraf–District 6, Wozniak–District 8).   Other competing plans bubble up, sponsored by the Worthington Minority (Worthington–District 7, Arreguin–District 4, Anderson—District 3) and a new aligned student group, United Students District Amendment (USDA).

No timely agreement reached and no sought-after Student District said to be feasible under Charter guidelines.

January to July 2012—Decision made to amend City charter guidelines to scrap template of 1986 boundaries, but to continue protection of incumbents, and also to promote “students” as a primary (and the sole) “community of interest” deserving of an enhanced Council district.  Measure R so amending City Charter placed on November 2012 ballot.   Existing district lines, uncorrected for the 2010 census (the “Old Lines”), thereby remain in place for the November 2012 Council election.

November 2012—Measure R approved by 66% of voters.  Under both old and new Charter provisions, Council can redistrict itself by simple ordinance without further voter approval, unless certain referendum protest procedures are accomplished.

2013–Various redistricting plans submitted under proposed new Measure R Charter rules.   Official deadline for plans is March 15, 2013.  Bates Majority moves forward with BSDC redistricting plan, giving no serious consideration to other plans, including a plan that includes a West Berkeley-based Council district.  Worthington Minority submits various plans through July under the aegis of the United Students District Amendment (USDA)

December 2013—Council Majority approves new district lines (the “New Lines”) more or less along the lines proposed by its proxy, the BSDC and in time to meet the December 31, 2013 Charter deadline.  Most contentious aspect of New Lines is the restoration to District 6 (Wengraf) of Northside’s Hearst Avenue corridor containing some student co-ops and dorms and the Northside business district, and removal of aforesaid from District 7 (Worthington).  District 7, the erstwhile new Student District, now has about 86% student-aged residents, slightly less than the Worthington/USDA plan which had about 90% students.  All the Council Districts under the New Lines have less than 1% variance from the equalized 14, 073 standard and are in compliance with one person-one vote principle.

December 2013/January 2014—Opponents of the New Lines gather signatures adequate to force the New Lines to a general vote in November 2014.  Council has choice of placing New Lines on November 2014 ballot or continuing negotiations with the dissidents.

February 2014—The Bates Majority votes to place the New Lines on the November 2014 ballot for voters to decide.  Key question—for the November 2014 Council election (four council seats—Maio, Arreguin, Worthington, Wozniak) will the Old Lines or New Lines or some other set of district lines be operative?  Council Majority opts to get a definitive legal determination, or declaratory relief, by, of necessity, “suing itself in a friendly lawsuit”.

March 2014—New ballot initiative started by Councilmember Arreguin (of Worthington Minority) for the November 2014 election calling for an independent nonpolitical redistricting commission to propose boundaries for elections subsequent to November 2014 and in conjunction with future censuses.  This initiative would also repeal Ranked Choice Voting for Council districts.  To qualify for the November ballot, this charter amendment requires 11,629 valid signatures by May 8.  Such a measure, while offering a new future approach to redistricting and to voting procedures, is a separate issue from the Old Lines/New Lines dispute now being adjudicated and put to the voters.

March 2014-Present—Old Lines/New Lines dispute in adjudication in Alameda County Superior Court and decision expected by April 30.  Key issue is constitutional—under one person one vote principle, are not Old Lines clearly unconstitutional and New Lines constitutional?

WHAT DOES IT ALL MEAN? 

The Student District

It seems to me that the city already effectively had a Student District under the Old Lines District 7.  Old District 7 was overwhelmingly student-populated and could have offered and elected a student to Council at any time instead of longtime Councilmember Worthington.  So the entire idea of a Student District was a form of political pandering, by all factions, to aroused student leaders who, in turn, may have experienced the issue as a righteous new claim to power they already possessed and/or as a path to more personal political power in the City.  The Student District is a new garment on the Old District 7 body.

Students now make up about one-third of the Berkeley population or about 40,000 students.  They reside all over town, but mostly in District 7, with a very sizable presence also in Districts 4 and 8.

The Bates Majority likely viewed an ostensibly new Student District as a way to rid Council of nemesis Worthington and to pursue a different agenda for Telegraph Avenue and the campus area.  The Worthington Minority needed to obfuscate the fact that Worthington was not a student and had not necessarily acted in their best interests.

The Charter Boundaries 

The old Charter boundaries could, arguably, have been adjusted to reflect 2010 Census population changes and enhance District 7 as a stronger student district, and Measure R trashing the Charter boundary template might actually have been unnecessary.  However, there was so much confusion and political calculating, that Measure R was moved by Bates and Arreguin and approved by Council.  Measure R effectively bought time for more political jockeying.

An Independent Nonpolitical Redistricting Commission

Readers need be aware that at no point in the process (until it was over) did anyone in power call for an independent nonpolitical body to oversee redistricting, nor did anyone in power propose eliminating the legal protections for incumbents even where these produced arbitrary and jagged district lines.  The appearance now on the November ballot of this “good government” measure will certainly layer on another level of confusion and fog, and I certainly do question the motives and timing of the proponents.

Communities of Interest

Under the law, so-called communities of interest are to be considered, but not determinative, when redistricting (the main criteria for redistricting must always be equalization of population).  A community of interest is a loose concept that can encompass contiguous racial, ethnic, economic and other groups who might justifiably benefit from having a cohesive voting district.  In Berkeley’s process, only the students were given substantial attention as a community of interest.  It is certainly arguable that West Berkeley should have been given more consideration as a community of interest due to its geographic and economic status, especially subsequent to the City’s failed attempt to completely re-zone West Berkeley in the losing Measure T of November 2012.  But creating a new council district focused on West Berkeley would have completely disrupted the districts of Bates Majority incumbents Maio and Moore and would also have created an entirely new political calculus for other Council districts which would of necessity be affected at the boundaries.  West Berkeley was never on the table, and no one from any Council faction ever seriously tried to put it there.

It was also argued by some that certain smaller neighborhoods in Berkeley constituted “communities of interest” that were split up or ill-treated by the redistricting process.  However, given the complexities of reapportioning it is almost inevitable that certain smaller community entities might be split.  In any event, some of the few affected neighborhoods had self-appointed spokespersons who appeared to be partisans with a larger/different  agenda than neighborhood well-being.

The 2012 Council Elections

In 2012, Councilmembers Moore, Anderson, Capitelli and Wengraf were re-elected under the Old Lines, which had not yet been adjusted for population changes.  Except possibly for District 5 (Capitelli) which was a close election, it is likely that the use of the Old Lines made little difference in outcome, although since all of these districts are undercounted one could say that each of these districts currently has more voting power than warranted by one-person one vote principles.  Ranked Choice Voting (RCV) was not a factor in these elections (although RCV did influence the shifting and bizarre political configurations around the 2012 mayoral election).  Berkeley voters should note the disaster produced by RCV in Oakland’s mayoral race and rue the day they supported it for Berkeley.

The 2014 Council Elections

For the 2014 Council election (Districts 1, 4, 7 and 8), Districts 7 and 8 are likely to be hotly contested, while Districts 1 and 4 will likely see an easy ride for incumbents Maio and Arreguin.  The configuration of the district lines matters most for Districts 7 and 8 potential candidates and their Council allies. Remember readers, the Old Lines are patently unconstitutional under one person-one vote principles, and patently illegal under the City Charter requirement of new lines by December 31 of 2013.  Complicating matters greatly is Ranked Choice Voting, which will surely play a big role in Districts 7 and 8 and is already influencing the various players.  Also in District 8, longtime Councilmember Wozniak will not be running for re-election and a whole slew of candidates is emerging ready to play the Ranked Choice game.   Meanwhile, candidates cannot officially declare and prepare until the Old Lines/New Lines dispute is legally settled.

The Bates Majority is hoping that the judge will approve the New Lines.  The Worthington Minority prefers the unequalized and illegal Old Lines but dare not say so, and obfuscates by calling for a judicial consideration of other redistricting proposals and by initiating the good government redistricting commission initiative.

Under the Old Lines, the population discrepancies have not been equalized.  For District 7, Worthington would get to keep the students on Berkeley’s Northside, who are ostensibly the more “progressive” students (dorms and coops v. fraternities) and thereby has a better chance of re-election even against an energized student candidate. For George Beier, a longtime political fixture who unsuccessfully ran against Worthington in the past, he would still be in District 7 and unlikely to gain his goal of councilmember against either Worthington or a student.  Given no other choices, Beier would prefer the New Lines, where he’d be situated in District 8 with a marginally better chance of success  (Beier has been unsuccessfully promoting his own redistricting plan which, of course,  would maximize his own options).  For the Bates Majority, the New Lines, by restoring the Hearst Avenue corridor to District 6, give their student allies a better chance of defeating Worthington and installing a Bates Majority student in District 7, and serve the secondary function of restoring a business district to District 6 (alone of Council districts in lacking one).

The Judicial Determination

In my opinion, there is no way a judge would approve the Old Lines for the 2014 Council election as they are patently illegal under the Charter and constitutionally incompatible with numerical population changes.  The New Lines were timely approved by the legally-authorized governing body and are likely to be confirmed by the voters in November.

Nor can I see a judge trying to draw or select a new configuration of district lines from among a variety of plans, as this is not the judicial function and no judge would have the expertise or resources to sort through this can of worms.

In sum, my bet is that the New Lines will be judicially approved at least for this 2014 council election.  We will find out on April 30.

The Voter Determination

Although the current redistricting process has been a disheartening foggy bottom of political maneuvering and pandering by all of the players, I plan to vote YES for the New Lines.  Even though I question the timing and motives of proponents, I will consider voting affirmatively for the redistricting reform measure, but await more details and developments.

To function, our City must absolutely have a viable legal election this fall for Districts 1, 4, 7 and 8.  To be viable and legal, the court must choose the New Lines and the voters must approve them.  What happens after that or should the voters not approve the New Lines, remains to be seen.

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  • EricPanzer

    Despite containing an impressive amount of factual information and analysis, this article does contain at least a couple of factual misstatements.

    Putting the creation of the Berkeley Student District Campaign and the United Student District Amendment in 2011.
    This bit of revisionist history is demonstrably false. The United Student District Amendment (USDA) was not submitted as part of the first round of redistricting in 2011. In fact, it wasn’t even submitted as part of the second formal redistricting process for which submissions were due in March 2013. USDA was a last minute addition created by interns in Kriss Worthington’s office two months after the closing of the period for proposal submissions. The first mention of the USDA on the DailyCal website came after the proposal was first introduced in July 2013. The first mention on Berkeleyside is in September 2013. If one looks back at the maps submitted in 2011, the USDA is not among them—nor should it have been. Until the passage of Measure R, the boundaries of the USDA would not have been charter compliant.

    Mischaracterizing Measure R
    “Decision made to amend City charter guidelines… to promote ‘students’ as a primary (and the sole) ‘community of interest’ deserving of an enhanced Council district.” This is another false statement, since the amendments to the City Charter approved under Measure R do not even contain the word “student” let alone “promote students as a primary (and the sole) ‘community of interest.'” After the passage of Measure R, the relevant City Charter provision now reads:
    “In establishing and modifying district boundaries, the Council shall ensure that the districts continue to be as nearly equal in population as may be according to the census, taking into consideration topography, geography, cohesiveness, contiguity, integrity and compactness of territory of the districts, as well as existing communities interest as defined in California Constitution Article XXI, section 2(d)(4)”

    Going a bit further, I would argue that the attention given to the student district arises from several factors: 1) Students were arguably the single most active community of interest in this entire process. Whether we like the resulting outcomes or not, one rule of Berkeley City governance is that squeaky wheels get the most grease. 2) The 1986 boundaries were drawn in a conscious effort to fragment the student community, which was then strongly aligned with the city’s “progressive” faction. Whether the student population has become more pragmatic or “conservative” is a question for another debate. 3) Students live primarily in the dense, compact neighborhoods of Southside, Downtown, and Northside. Substantially dividing any one of these neighborhoods, and therefore the student population, very nearly requires a conscious effort of the sort that led to the 1986 boundaries. Creating a campus district is part and parcel of creating compact districts as well. If it weren’t for the need to keep Councilmember Worthington in District 7, that district could be shrunk to an approximately 35-block area (not including the Berkeley Campus). It’s actually in the interest of other Berkeley neighborhoods to make Districts 4 and 7 as compact and dense as possible, since lower-population census blocks may be more easily shifted between districts to create boundaries that are intuitive and/or respectful of neighborhoods.

    There is much in this article I disagree with, but also a great deal with which I agree wholeheartedly. Even though I don’t entirely agree with Ms. Gilbert, with these corrections (and potentially others), I think this is an opinion piece I could recommend other people read for important information and interesting perspective.

  • George Beier

    Barbara, the compromise I proposed doesn’t “maximize [my] options” — it doesn’t change the district I would be in (D8). I’d be happy to show you the compromise map I’ve submitted so that you can see that for yourself. Just give a call (510-290-9036) or shoot me an email to georgebeierjr@hotmail.com and I’ll send it to you.

    It seems to me you got a lot of the rest of this right. If you want to get behind an independent commission to draw up districts, I’m on board!

  • John Freeman

    Another area where this is a little muddled is that question of the “official deadline”.

    Now that the whole thing has blown up into such a controversy the city council majority likes to retroactively claim that the deadline for public submissions of maps meant that on that date there would be a final list of candidate maps and that exactly one of those maps would be chosen.

    In fact, that explanation of the deadline is purely retroactive. The reality at the time was the council was free to use any of those maps or one of their own, and there was nothing to prevent council from considerations alterations to those maps or entirely new maps. All the whining about USDA supposedly circumventing process is made up nonsense.

  • guest

    As someone who participated in the misleading referendum campaign the “current fiasco” is of your own making.

  • guest


    Another area where this is a little muddled is that question of the “official deadline”.

    No, not really. The official deadline for submissions was March 15, 2013.

    http://www.ci.berkeley.ca.us/Clerk/Home/Redistricting_Timeline.aspx

  • John Freeman

    You will have to show me where that document contradicts what I said. (Hint: you can’t because it doesn’t.)

  • guest2

    to quote from the linked page:
    March 15, 2013 Last day for public or councilmembers to submit a redistricting proposal to the City Clerk. Proposals must be submitted in the format established by the City Council.

    Worthington submitted his map after that date, showing that it is not true that “All the whining about USDA supposedly circumventing process is made up nonsense.”

  • John Freeman

    The USDA which amends the BSDC map, yes. What I said is true and uncontradicted:

    The reality at the time was the council was free to use any of those
    maps or one of their own, and there was nothing to prevent council from
    [considering] alterations to those maps or entirely new maps.

    In fact, the council’s own actions subsequent to March 15 show that they know this full well. Some of them also try to say otherwise when there is some political convenience in it for them.

    Yes, the process whining is nonsense.

  • guest2

    The council was free to use any of the maps or one of their own, and their own actions subsequent to March 15 show that they know it.

    Councilmembers or members of the public were not free to submit new maps after March 15, so Worthington and USDA ignored the process by submitting a new map after that date.

    That is the fact, no matter how much you whine about it.

  • guest

    This part right here:


    March 15, 2013

    Last day for public or councilmembers to submit a redistricting proposal to the City Clerk. Proposals must be submitted in the format established by the City Council.

    Boy, I can’t wait to hear the tortured logical gymnastics you’re going to use to try to make that obvious deadline seem like something difficult to understand.

  • bgal4

    Thank you Barbara for putting in the time and effort to help the community understand the background and political dynamics in this mess.

  • Barbara Gilbert

    To respond to a few of the relevant comments on my article:
    Jesse Arreguin and others may or may not have at some point discussed various matters, such as an independent redistricting commission and a supermajority redistricting procedure, in private behind-the-scenes meetings. The fact that Councilmember Arreguin mentioned these in his sworn deposition is is immaterial. These sub-rosa discussions are also immaterial as they represent no more than normal and even healthy behind-the-scenes political negotiation. Legislative intent is established by public discussion in official forums, as well as by actual votes and outcomes.
    It seems a minor and disingenuous criticism that Ordinance No. 7,320-NS (creating the New Lines) was placed on the November rather than the June ballot. For the June ballot, the “students” would be gone and the cost would be about $300,000. In early November, the students are around to vote and the added cost is only $20,000. If the matter had been placed on the June ballot by the Bates Majority I’m convinced there would have been an outcry from the Worthington Minority about the timing and cost.
    Measure R amending the Charter boundary template may not have specifically mentioned the “students” as a community of interest but it is entirely clear (and a main point of my article) that the students were a driving force in the entire process.
    When I wrote the article a few weeks ago I was unaware that today’s judicial determination could be appealed. I certainly hope that this doesn’t further obfuscate the matter or threaten the validity of the New Lines for the November Council election. I truly believe that we need to have this settled for the time being so we can address other critical city issues.
    I stated that the Arreguin ballot initiative in re an independent nonpolitical redistricting commission also would repeal ranked choice voting. The Notice of Intent to Circulate Petition that Arreguin submitted to the City Clerk includes language (Section 9. Subsection(k))referring to runoff elections (the converse of RCV) that I think he mistakenly included in his Notice. I don’t know whether this language is included in the circulating petitions. Arreguin may may have legal problems with his Notice and actual petitions!.
    Finally, I’d like to add that I’m pleased that Berkeley voters will be able to weigh in on the New Lines and I hope and believe that they will approve them. This should lend necessary weight and authority to the New Lines and limit subsequent vitriol.

  • AnthonySanchez

    In re: to your charge about instant run-off voting, which truly confounded me until I looked up what you’re alleging, I think you are confused about existing language within a subsection of a charter that clearly says: “If the provisions of Article III, Section 5, Paragraph 12 related to instant runoff voting are operative, the vote threshold requirements in this section shall have no application to municipal elections.” In other words RCV is operative. Please note that only UNDERLINED language is added and that non-underlined and non strike-through language is existing language.

    We’ve not touched RCV and I am sorry that you’re mistaken, causing great confusion about what our initiative is truly about. I hope this misinformation can be promptly corrected.

  • Barbara Gilbert

    Anthony, my statement about Ranked Choice Voting (not Instant Runoff Voting) arose because Section 9 Subsection (k) was incorporated into your Petition without another explanatory reference, and was thereby confusing. I did not make a “charge”, I made an understandable misinterpretation. If I found this confusing, I’m sure others could as well.

  • AnthonySanchez

    Understood, but you posted your comment even after I emailed you saying that we’ve not amended RCV. The implication that we’re subverting RCV under the guise of a good government initiative is pretty damning, so you can excuse my vigor in refuting any such suggestion.

  • Martha Luehrmann

    Thank you, Barbara, for helping us make some sense out of this mess of self-serving posturizing.