An Open Challenge to Disingenuous Don Wagner




[ED. NOTE – As soon as I saw this incredibly wordy and dishonest piece supposedly penned by Irvine Assemblyman Don “Spanky” Wagner, on the Flash Report, attacking the California Supreme Court for “lawlessness” in not immediately overturning the newly drawn state Senate lines for the upcoming election, I thought of our own Greg Diamond, who as you can see is better than anyone else we know at smacking down Spanky’s nonsense.  So I sent Greg a link, and within hours the following was done.  Unfortunately it seems impossible to comment over there, at least on Spanky’s story.  So how do we get this challenge to him?  Whoever knows Fleischman or Wagner, please send this piece on.  Don’t we want to see a Spanky-Diamond Cage Match?  I do! – Vern]

Don Wagner

Debate me, you blithering know-nothing.

Dear Assemblyman Wagner (R-Irvine),

Or may I call you “Don”?  After all, while I have not yet filed my candidacy for the 29th Senate District, I have taken out the petitions I will have to complete to be on the ballot, as well as taken steps towards seeking my party’s endorsement for that position.  So, being on the cusp of politician status myself, I will presume that I am entitled to call you “Don.”

You may not know me, Don, but I have some expertise on the issue of redistricting.  I was a Political Science professor (teaching in the area of American Politics about, among other things, redistricting) at the University of Illinois in the early 90s; later, I became a big-firm attorney whose pro bono practice in New York included aspects of election law.   Having practiced appellate law in New York, I also know a thing or two about constitutional and statutory interpretation.

I carefully studied what the Citizen’s Redistricting Commission did this year, testifying before the Commission three times.  I submitted two sets of written maps for Orange County (for which a Republican Commissioner complimented me after one meeting), and which in some aspects — not including the treatment of my home region of North Orange County — were markedly similar to those adopted by the commission.  (By the way, in constructing those maps, I never looked at the partisan composition of the districts or at where people lived until I turned them in.  I’m proud of that.)

All of that is to suggest that I would probably be considered qualified to debate you about the contents of the article that you published today (dated Jan. 31) in The Flash Report provocatively entitled “Our Lawless Supreme Court,” in which you characterized our State Supreme Court’s opinion of last week in the matter of what lines to use in the upcoming elections as “[l]awless, in that it ignored the law to reach a decision the Court was explicitly prohibited from reaching.”

I offer to debate you, in public, for a period of not less than 90 minutes, on the allegations you make in the article. I suggest UCI Law School, on your own home turf, as a reasonable venue. Having read your article, I feel the strong desire to make an absolute fool of you — a task made easier by the fact that you’ve already completed most of that job yourself.

Some might think that you would have me at a disadvantage in such a debate — after all, you graduated from law school 25 years ago this year to my 10 and have practiced much more law.  I’m willing to take that risk, though.

Here, let me give you a taste of what’s to come if you have the guts to debate me.  You say:

The petitioners gathered over 711,000 signatures and, therefore, the Court recognized, the petition is “likely to qualify” for the ballot. But this likelihood creates a problem. According to the California Constitution, the existence of a referendum “likely to qualify” for the ballot – which the Court accepts that we have here – operates to “stay” the Commission’s lines. If the lines are “stayed,” though, and the election is coming, what lines should be used? That is the question the Supreme Court had to answer.

The most important point to note is the explicit text of the Constitution. Under our form of government, the Constitution, coming as it does from the sovereign people, is the supreme law of the land. It exists to inform, control, and limit the actions of the Legislature, the Executive, AND the Court. No branch of government has the legal right to disregard the express directive of the sovereign people as set forth in their Constitution.

In the redistricting case, the California Supreme Court did precisely that. And to do so is literally outside the law, or lawless.

Can we agree, Don, that the Supreme Court’s responsibility was to adopt interim lines that, among other things, satisfied the “one-person one-vote” requirement of the U.S. Constitution and satisfied the requirements of the Voting Rights Act?

All right — you probably won’t agree on that reasonable statement, because as Plaintiff you sought one remedy that could have left the Senate districts to be used in 2012 up to over 30% out of whack from equal population.   You sought another remedy that literally asked the Court to just put the decision in the hands of a Special Master, Tony Quinn, the handpicked advisor to the Republican Party.   But let’s pretend for a moment that you do agree with those reasonable, lawful, and laudable goals.  How should the Supreme Court have approached choosing interim lines?

Your argument, in essence, is that the Supreme Court could have done hundreds of things, except one: they could not choose to use the lines drafted by the Commission even on an interim basis.  Those lines were emblazoned with a mark of Cain, a biohazard warning, a stamp of “Verboten!“, because they had to be “stayed.”  In other words, you argue that the Court did not have the right to look around and say something like this:

“Well, we need to come up with interim lines soon.  So, on an interim basis, why don’t we take the lines that

    • were developed through a non-partisan process created by voter initiative,
    • after mountains of still-publicly available testimony in which any adult Californian could take part and which anyone with Internet access can still review,
    • that required not only approval of a majority of the Commissioners in each of the two major parties but a 3/4 of non-partisan commissioners as well, and
    • that have already completed the laborious process of Voting Rights Act review

and adopt them on our own authority, based on our independent analysis of the Commission’s labors, to use in the interim?  Wouldn’t this be better than choosing a set of interim lines that this intensive process had already determined to be of lower quality — not to mention using lines that one Republican hack would pull out of the air?”

The contention that the Supreme Court could say anything else but for God’s sake not this is absurd.  The issue at hand in the case you filed is whether the Commission’s lines would be place into effect for ten years.  And: that hasn’t happened.  That action has been stayed, as required by the state Constitution.

But that requirement for a stay does not require that those lines being deemed to have cooties for the next two election cycles.  These are not, for the purposes of determining interim lines, the Commission’s lines; they are the Court’s lines.  The Court chose them for this purpose because the Court unanimously concluded that they were the best available interim option.  They were better than lines “submitted by interest groups” (some of the “hundreds of available options” you touted — and I wonder which interest groups you had in mind); better than lines submitted by a Republican hired gun.  They were the fruit of a process for which the public itself voted — and which, at least on an interim basis, the Court was able to respect.  So, as an interim choice, they had a lot going for them.

Note that the Court’s making that determination does not prevent the public from voting this November not to use these lines for the entire decade.  Your argument would only make sense (if even then) if it did so.  Does it give those lines some presumption of reasonability?  Perhaps — but that would be true of any interim lines chosen, so it has to be factored out of the decision.  The Supreme Court has no responsibility to choose interim lines so offensive that everyone would be glad to see the hind end of them in 2016.  They can choose the interim lines that look best.

But let me tell you what really irks me personally about your argument, Don.  Here’s one of the “hundreds of available options” that you said the court had available to it last Friday:

“It could have – and probably should have – appointed a Special Master to draw new lines.”  (My emphasis.)

How long would that have taken, Don?  January 27 was 130 days before the June election.  How many more of those 130 days were you prepared to use up?

As a prospective candidate for State Senate, I’ve been wondering what district I will end up in this year.  Will I be able to run against Bob Huff, as planned?  Or will I, possibly, be lumped into Lou Correa’s district (which would mean no Senate election for my city at all this year — unless they re-renumbered the districts, which would wreak havoc.)  Would I end up in a district up against so strong a Democratic challenger that I would not have bothered to run?  I have a campaign to get underway, Don, but the uncertainty has meant that I haven’t been able to do it yet! Nominating petitions are due on March 9, Don.  How long did you expect potential State Senate challengers like me to have to wait?  How fast do Special Masters work, anyway — unless they came in with their own fully formed plans (as, say, Tony Quinn or the League of Cities might)?  It took the Commission months and months to reach their final product.  Were you just trying to protect incumbents?

(Why do I ask?  Of course you were just trying to protect incumbents — and the overrepresentation of Republicans in the State Senate.  Why else would you have filed the lawsuit?  Non-partisan love of fairness?  You?)

Since you’re so cocksure about telling the public that the Supreme Court is biased towards Democrats, Don, please humor me.  Debate me about this for 90 or more minutes, at UCI Law School — or elsewhere.  (We have a nice law school in my district as well.)   I’d be happy to get into the applicability of the Deukmejian case with you.  Defend your attack on the fairness and wisdom of our unanimous state Supreme Court — if you think you can.

Now, you may wonder: why do I make you this challenge?

It’s because I think that what you’re doing is pretty rotten.

At some level, I’m guessing, you know that you are just blowing smoke here.  (That this was the unanimous opinion of an almost entirely Republican-appointed Supreme Court should have been a clue to your readers.)  You’re doing this, I suspect, for perceived political gain — you want to keep those lines that recognize the far greater number of Democrats than Republicans in this state in the deep freeze.  I suppose that there’s nothing inherently wrong with that — it goes against my “good government and fairness” ethic, but there’s no law saying you have to share that — but you’re seeking that political gain at the price of public confidence in the institution of our state Supreme Court.

You were pretty harsh on them, Don.  You suggested that they are not only wrong, but foolish — that they overlooked something completely basic, apparently for motivated reasons like a paradoxical and unexpected bias towards the Democratic Party, despite that six of the seven were appointed by Republicans in the first place.

Why would you do this?

I have a hypothesis.  I don’t know that it is accurate, but at least it is simple and straightforward: by suggesting that the neutral court is biased and underhanded in its dealings with Republicans, you make it easier for Republicans to justify “fighting back against the system” in underhanded ways.  People have a need to convince themselves that their actions are justified on some level, after all.  One justification that can get people to act lawlessly is the combination of “everyone cheats” and “our opponents are treating us unfairly right now.”

So: you trashed the Court — based on either ignorance or disingenuity or pure malice.  (I don’t know which.)

Left unanswered, the notion that the Supreme Court acted in some sort of biased or illegitimate or, for God’s sake, unlawful way here is socially corrosive.  It can lead decent people to think that our political process has left the realm of lawfulness — and that the boxing gloves must now come off (or have horseshoes inserted into them.)

It’s an ironic stance — given that this was a “good government reform” in conception, and that most reports are that it was undertaken quite responsibly and fairly, and that Republicans didn’t choose to sue over those new lines where the did not believe that their oxen were gored.  This conclusion of yours is so diametrically opposed to any fair reading of the careful actions of the Citizens’ Redistricting Commission and of the careful reasoning of the California Supreme Court that it simply cannot be allowed to stand.

Therefore, Don, in the general interest of our political system and its halting steps towards government reform, I must demand the opportunity to reduce you through public debate into an incoherent pile of quivering goo.

I do apologize if this invitation to an esteemed legislator such as yourself seems indelicate, but your Wikipedia page suggests that you are not one to concern yourself overly with delicacy:

On June 15, 2011, during an Assembly debate on a redevelopment bill, Wagner remarked that the bill was like something he had “seen on The Sopranos” and likened the author of the bill to Tony Soprano. After Assemblyman Anthony Portantino demanded that Wagner apologize for his comments, Wagner replied that he would “apologize to any Italian-American who is NOT in the Mafia or involved in insurance scams”. His response incited a verbal confrontation on the Assembly floor between him and assemblyman Warren Furutani (D-Gardena), and the two had to be physically separated.

So let’s have at it, Don.  You think that our Supreme Court ignored the law?  (Or, perhaps, you think that you can convince those in the public without our legal training and with a bent towards reactionary paranoia that you have some sort of valid point?)  Great! Let’s hash it out.  I would look forward to it more than I could express.

And if someone else wrote the article for you (as I suspect might be so), you can even have them in the audience to give you hand signals on what to say.  I won’t mind you’re getting a little outside help.  With the position you have to defend, you are going to need it.

UPDATE, Feb 3: CalBuzz also goes after Wagner — but no challenge to debate him!

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)