Silicon Valley venture capitalist Tim Draper’s initiative to split California into three states, being marketed as Cal 3, qualified for this year’s November ballot. The idea is problematic.

What the three proposed California’s would look like. Credit: Los Angeles Times graphics

But before we dive in to the what if’s of what happens after it passes, or the big if that is if it passes, it needs noting that there is a strong chance that this could not be on November’s General Election ballot even though it received the number of signatures necessary to qualify.

That’s because this initiative is ripe for pre-election review by the California courts, according to McGeorge professor and elections expert Mary-Beth Moylan. And not only is it ripe for review by the courts, but she thinks the likelihood of the courts throwing the initiative out – that is, removing from the ballot – is very high. Here’s her reasoning for that, from an interview that she gave to KCRA 3 News in Sacramento:

The California Constitution gives people the initiative power to make laws. This isn’t really enacting a law. This is attempting to alter the boundary lines of the State of California and to create essentially two new states … The California Constitution itself says that the boundary lines for California are those that were set at the time of the 1849 (state) constitution. Any attempt to change that provision, I think, would amount to a revision, which people don’t have power to make revisions. The only way the constitution of California can be revised is if the Legislature sets a constitutional convention or proposes revisions to the people.”

The first question that comes to mind is, if this initiative passes, could California actually split into three states? The short answer is yes, but I’d be remiss if I didn’t say that there is a very wide gulf between could happen and would happen.

Article IV, Section 3 of the U.S. Constitution reads: “no new States shall be formed or erected within the Jurisdiction of any other State … without the Consent of the Legislatures of the States concerned as well as of the Congress.” So, the constitutional ability to split California exists. There is even precedent for a state to be created by splitting off from another state.

In 1863, West Virginia became a union state after delegates from Union-supporting counties in the northwestern part of the wanted to break off from the Confederate state of Virginia. Should all the necessary hurdles be cleared, splitting California “would be the first division of an existing U.S. state since the creation of West Virginia” according to John Myers at the Los Angeles Times. But the circumstances are worth emphasizing here. The creation of West Virginia happened during the Civil War when a portion of a Confederate state decided to leave and join the Union. These circumstances are not at play today.

That leads to the Congressional hurdle, which appears to be insurmountable given the current Congress, assuming the initiative passes in November. The three proposed states are divided up along existing county lines. When you look at which counties are in each proposed state, it looks like the U.S. Senate would easily add three more Democratic Senators (in addition to current Senators Feinstein and Harris), a proposition that would not go over with Republicans.

But, for the sake of argument, say the initiative passes, Congress approves, it clears every legal hurdle it faces, and California indeed splits into three states. Can Cal 3 deliver on the benefits it says passing the initiative will reap? Let’s take a look at a couple:

  • Lower taxes – The promise is that “Cal 3 would encourage each state set lower tax rates.” For one, taxes are not mentioned at all in the proposed initiative that was submitted. So to claim that the initiative encourages the new states to lower taxes is dubious. Further, there’s no guarantee that elected officials in Northern California (likely to be predominantly from the San Francisco Bay Area and Sacramento) or in California (predominantly from Los Angeles) would set tax rates lower than they are currently.
  • Local Identity, Autonomy, & Diversity – The promise is “Rather than being managed remotely – and ineffectively – from Sacramento, each state will have the autonomy to make choices based on the most pressing needs and opportunities closest to home.” Considering that 56 of the Legislature’s 120 members come from either Los Angeles County or the Bay Area (19 members of the Senate and 37 members of the Assembly) it’s fair to be concerned that other parts of the state aren’t having their voices heard when weighed against the clout of these two dominant urban population centers. But again, the way Cal 3 divides California doesn’t do much to ease that concern. The new California would be dominated by elected officials from Los Angeles over those from the other central coast counties and Northern California would be dominated by Bay Area and Sacramento electeds over those from the rural north of the state.

There will definitely be money on both sides of this fight. Tim Draper, obviously, support is it and Democratic consultant Steve Maviglio is leading the effort to oppose and has been doing so for months. While there is definitely enough sentiment supporting the idea to split up California that Draper thinks it’s a worthwhile use of time and money, I don’t the votes – at the first step of passing the initiative or at the second step of getting the votes in Congress to sign off on this – for the plan to come to fruition.

This post was updated as of 8:45am on 6/14/17 to include a quote from McGeorge Professor Mary-Beth Moylan on the likelihood of the initiative holding up to legal challenges.

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