Myers, a prisoner serving a life sentence, petitioned for a writ of habeas corpus in the district court arguing that the California Supreme Court’s disparate treatment of his case and an essentially identical case denied him the equal protection of the laws. The district court denied the writ. We reverse.

I

In 1979, a jury found Myers guilty of first degree murder, assault, and robbery. Myers argues that the California Supreme Court’s refusal to order a new jury trial in his case was unconstitutional. In Myers’ view, the California Supreme Court violated the equal protection clause when it declined to apply a decision regarding the right to an impartial jury retroactively in his case even though it had done so in an essentially identical case.

This appeal turns on the Supreme Court of California’s handling of three cases —In re Rhymes, 215 Cal.Rptr. 852 , 701 P.2d 1170 (1985), 1 People v. Myers, 43 Cal.3d 250 , 729 P.2d 698 , 233 Cal.Rptr. 264 (1987), and People v. Harris, 36 Cal.3d 36 , 679 P.2d 433 , 201 Cal.Rptr. 782 (1984). Rhymes and Myers were pending on appeal before the supreme court when the court decided Harris .

The relevant facts and issues in Rhymes and Myers were essentially identical. Both cases raised the question of how a defendant may prove that a jury venire is not sufficiently representative of the community.

In Rhymes , the defendant argued in a state habeas corpus proceeding before the Los Angeles County Superior Court that her conviction, handed down by a Pomona jury, should be reversed because the Pomona Judicial District’s reliance on voter registration lists violated the United States’ and California’s constitutional guarantees *419 of a trial by an impartial jury drawn from a cross-section of the community. The superior court conducted an evidentiary hearing and concluded on October 20, 1980 that Rhymes should be granted the writ.

At the time the writ was granted in Rhymes , Myers’ trial, which also took place in Pomona, was in the jury selection phase. Three days after the superior court’s decision in Rhymes , and before jury selection was completed in his own case, Myers timely moved for a mistrial. The primary basis for Myers’ challenge consisted of statistical reports and evaluations introduced in the Rhymes case. Myers, 43 Cal.3d at 261 , 729 P.2d at 704 , 233 Cal.Rptr. at 269 (Myers “relied almost entirely on the statistical studies, legal briefs, referee’s report, and order in the Rhymes case”). The statistics compared the percentages of racial minorities on jury panels in Pomona with the percentages of racial minorities in the general population of Los Angeles County. “The only difference between Rhymes and [Myers'] is that Rhymes was tried by a municipal court jury in the Pomona Judicial District, while [Myers] was tried by a superior court jury in that same district. However, the deputy jury commissioner testified in [Myers ] that superior and municipal court juries in Pomona are chosen from the same pool.” Myers, 43 Cal.3d at 283 , 729 P.2d at 719-20 , 233 Cal.Rptr. at 285 (Bird, C.J., dissenting).

Myers’ motion for a mistrial was denied. His trial proceeded, and he received a sentence of death. Because the judgment was death, Myers’ appeal was taken directly from the trial court to the California Supreme Court.

At the time Myers was transferred, Rhymes was pending before the California Court of Appeal. On April 21, 1982, that court affirmed the superior court’s holding that Rhymes had made a prima facie case of under-representation of blacks in Pomona’s jury venire. The court of appeal held that a challenge to the use of voter registration lists may be based on comparisons between minority representation on venires and their representation in the general population. The court held that the defendant need not compare minority representation on venires to that in the voter population or in the “eligible-to-vote” population: “While it is true that courts have repeatedly stated that no reliable conclusion can be drawn when total population rather than voter population or eligible population is used, uncertainty in the ratio between the eligible and the total population does not preclude a court from finding under-representation when total population is used as the base.” Rhymes, 181 Cal.Rptr. at 771. The court of appeal accordingly ordered a new trial.

On May 27, 1982, the California Supreme Court granted hearing in Rhymes .

On April 20, 1984, while both Rhymes and Myers were pending before the California Supreme Court, the court decided Harris . In Harris , the defendant also challenged the constitutionality of the use of voter registration lists as the basis for the jury venire. As in Myers and Rhymes , the proof was statistics that compared the representation of minorities on jury venires with their representation in the general population of Los Angeles County. The only difference between the Harris case and the Myers and Rhymes cases is that Harris was tried in Long Beach, while the other two were tried in Pomona. Harris was the first case in which the California Supreme Court held that a criminal defendant could establish a prima facie case of under-representation of minorities on a jury venire by reliance on the disparity between the percentage of minorities in the general population and the jury venire, rather than on disparities between the jury-eligible population and the jury venire. The court accordingly remanded for a new trial. The court reserved the question whether its new rule would be applied retroactively.

On June 6, 1985, the California Supreme Court transferred the case of In re Rhymes to the court of appeal “with directions to refile its opinion.” 701 P.2d 1170 , 215 Cal.Rptr. 852 . Rhymes would thus receive a new trial.

*420 On January 2, 1987, the California Supreme Court in Myers held that Harris does not apply retroactively and that Myers’ challenge to his jury panel therefore failed because Myers relied on general population figures. Myers would thus not receive a new trial. 2

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.1985). We have jurisdiction pursuant to 28 U.S.C. § 2253 .

II

As a preliminary matter, we address the state’s argument that Myers did not base his equal protection argument in the district court on the disparate treatment accorded the Rhymes case and his case and that he is therefore precluded from doing so on appeal. The state concedes that Myers argued that he had been denied equal protection in the district court, but contends that his equal protection argument was based solely on Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987). In Griffith , the Court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constituted a ‘clear break’ with the past.” 479 U.S. at 328 , 107 S.Ct. at 716 . 3

Our review of the record persuades us that Myers raised his Rhymes theory in the district court and thus preserved it for appeal. Myers’ habeas petition did not specifically rely on Griffith . Rather, the petition simply stated that the California Supreme Court’s decision not to apply Harris retroactively to his case denied him equal protection. In his memorandum in support of the petition, Myers based his equal protection argument in part on the disparate treatment afforded Rhymes and himself:

In Myers’ reply to the state’s opposition to the petition, he again raised the Rhymes issue:

Finally, Myers presented his equal pro tection/Rhymes argument forcefully in his objections to the magistrate’s report and recommendations:

In sum, we find no support for the state’s contention that Myers failed to raise the Rhymes argument below.

Ill

The equal protection clause prohibits a state from affording one person (other than the litigant whose case is the vehicle for the promulgation of a new rule) the retroactive benefit of a ruling on a state constitution’s right to an impartial jury while denying it to another. 4 In Johnson v. State of Arizona, 462 F.2d 1352, 1354 (9th Cir.1972), we held that the State of Arizona could not apply a decision striking down determinate sentences retroactively in some cases but not all. Although a number of sentences had been vacated for resentencing in light of a decision by the Arizona Supreme Court {Ard v. State ex rel. Superior Court, 102 Ariz. 221 , 427 P.2d 913 (1967)), the Arizona Supreme Court refused to vacate Johnson’s determinate sentence. Relying on the equal protection clause, the court remanded to the district court to consider the retroactivity of the Ard decision and stated that “[i]f not so reconsidered within 45 days, the writ shall issue.” Johnson, 462 F.2d at 1354 . In La Rue v. McCarthy, 833 F.2d 140, 142 (9th Cir.1987), we suggested that California must apply decisions holding that a felony murder charge may not be based on child abuse retroactively in all cases or in none. “[W]e agree that once a state has established a rule it must be applied evenhandedly.” Id. at 142 (citing Johnson v. Arizona, 462 F.2d 1352, 1354 (9th Cir.1972)).

There is no reason not to extend the reasoning of Johnson and La Rue to cases involving challenges to the impartiality of a jury in a criminal case. Like rules regarding sentencing and the definition of felony murder, rules regarding the selection of juries in criminal cases involve an important aspect of a person’s treatment in the criminal justice system. A state should not be permitted to treat defendants differently for the purposes of jury selection unless it has “some rational basis, announced with reasonable precision” for doing so. Johnson, 462 F.2d at 1354 .

If the California Supreme Court retroactively applied Harris in Rhymes but not in Myers , it violated the equal protection clause. As we recognized in Johnson and La Rue , the equal protection clause prohibits de facto as well as explicit, or open, unequal and arbitrary treatment. Thus, the relevant question is whether the California Supreme Court in effect afforded Rhymes the retroactive benefit of Harris while denying Myers that benefit.

IV

The state argues that the refiling order in Rhymes was not a retroactive application of Harris because (1) the refiling order did not necessarily imply that Rhymes was receiving the benefit of Harris ; and (2) the refiling order was merely a “procedural ruling” and thus could not qualify as a substantive retroactive applica *422 tion of the Harris ruling. Neither of these arguments has merit.

a. Whether The Refiling Order Necessarily Implies That Rhymes Received The Benefit of Harris

As a practical matter, the California Supreme Court’s refiling order in Rhymes afforded Rhymes the benefit of Harris . In January of 1987, the California Supreme Court held that Myers’ reliance on comparisons between minority representation on venires and their representation in the general population was improper “under the ‘pr e-Harris’ authorities.” Myers, 43 Cal.3d at 269 , 729 P.2d at 710 , 233 Cal.Rptr. at 275 . “[Virtually all the California decisions which had addressed challenges to the use of voter registration lists before Harris had rejected evidentiary presentations which relied on general population, rather than jury-eligible statistics_ Harris simply created a new standard for determining the existence of a prima facie case.” 43 Cal.3d at 268 , 729 P.2d at 709 , 233 Cal.Rptr. at 274-75 . See also People v. Pendleton, 167 Cal.App.3d 413, 417 , 212 Cal.Rptr. 524, 526 (1985) (“The ‘pre-Har-ris ’ rule can be stated as follows: ‘Courts have repeatedly emphasized that no reliable conclusion can be drawn when total population rather than voter population is used as a base.’ ”) (citation omitted).

The court of appeal in Rhymes held that a defendant could base his prima facie case of jury under-representation on comparisons between minority representation on venires and their representation in the general population. Since the court of appeal’s decision in Rhymes pre-dated Harris and since the California Supreme Court has held that reliance on general population figures was improper “under the pr e-Harris authorities,” Myers, 43 Cal.3d at 269 , 729 P.2d 698 , 233 Cal.Rptr. 264 , the California Supreme Court could only have permitted the court of appeal’s holding on the use of general population statistics to stand by de facto applying Harris retroactively.

b. Whether The Refiling Order Was A Mere Procedural Order

The state argues that the order to refile the court of appeal’s opinion was merely a “procedural” device for disposing of the ease and thus did not indicate that the California Supreme Court approved of the court of appeal’s holding on the use of general population statistics. The state contends that, since the California Supreme Court in effect decided not to decide the Rhymes case, the court reached the issue of the retroactivity of Harris for the first time in Myers . It is arguable that the equal protection clause does not prohibit a court from disposing of a case on merely “procedural” grounds when the end result of that “procedural” disposition is to give one criminal defendant the practical benefit of a new rule of state criminal procedure while denying that benefit to another criminal defendant in an essentially identical case. We need not reach this issue, however, since the order to refile in Rhymes was not merely a “procedural” decision that expressed no view as to the merits of Rhymes’ appeal.

The California Supreme Court granted a hearing in the Rhymes case. In the often-cited case of Knouse v. Nimocks, 8 Cal.2d 482 , 66 P.2d 438, 439 (1937), the California Supreme Court explained the effect of a grant of hearing:

Under the law existing in California at the time the supreme court withdrew the Rhymes opinion and granted a hearing, the court had to approve or adopt the lower court’s opinion if it agreed with the lower court, or alternatively, it had to reverse the lower court if it disagreed. Either way, the supreme court had to make a substan *423 tive ruling on the merits. 5 The court’s decision to transfer the case back to the court of appeal with directions to refile its opinion was an approval of the court of appeal’s decision in Rhymes . The supreme court in effect retroactively applied Harris .

The supreme court’s opinion in Myers itself lends further support to the proposition that the supreme court’s refile order in Rhymes had substantive implications. In Rhymes , the court of appeal, in addition to deciding that general population statistics could be used to establish a prima facie case of group under-representation on a jury venire, also decided the question of the retroactivity of its holding. The court of appeal held that its decision would be prospective only. In Myers , the supreme court reasoned that its decision to order the refiling of Rhymes is one of “our actions since Harris [which] ... supports] the conclusion that Harris should not apply retroactively.” 43 Cal.3d at 265-66 , 729 P.2d at 707 , 233 Cal.Rptr. at 272 . The court can’t have it both ways: if the refile order constitutes approval of the part of Rhymes dealing with retroactivity, how could it not simultaneously constitute approval of the court of appeal’s holding in Rhymes that a defendant could establish a prima facie case of under-representation by reference to general population statistics? The fact that the court in Myers felt compelled to argue that its order in Rhymes was consistent with its holding in Myers is proof positive that a refiling order is a substantive disposition on the merits. See also People v. Osuna, 187 Cal.App.3d 845, 847 , 232 Cal.Rptr. 220, 221 (1986) (“Our high court’s directive to ‘refile [our] opinion,’ ... demonstrates its members ... agreed with our original conclusion.”) 6

At the time it decided Harris , the California Supreme Court had pending before it two cases raising essentially identical issues. In Rhymes , it decided to grant a criminal defendant the retroactive benefit of Harris by means of a refiling order. In Myers , the court denied a criminal defendant the retroactive benefit of Harris in a full opinion. The California Supreme Court’s decision to deny Myers the benefit accorded Rhymes is not made constitutional simply because Rhymes received her benefit by means of a refiling order, rather than by a full opinion. 7

*424 In his dissent in Desist v. United States, 394 U.S. 244, 259 , 89 S.Ct. 1030, 1039 , 22 L.Ed.2d 248 (1969), Justice Harlan pointed out that an inevitable consequence of a rule of prospectivity is that lower court decisions which later turn out to be correct must be reversed if the rule of prospectivity is to be enforced in a consistent manner. This is one reason why he argued for applying rules retroactively to cases on direct appeal. The Supreme Court in Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), recently adopted Justice Harlan’s reasoning in Desist , and although we do not reach the issue of whether Griffith applies to state court decisions promulgating new rules, we do note that the facts of this case perhaps illustrate why the United States Supreme Court has, at least with regard to federal decisions, decided to adopt Justice Harlan’s position that retroactive application of decisions is the least problematic approach to administering new rules.

Although in theory it may seem troubling that as a price for making a “new” rule strictly prospective, a court would have to upset a lower court decision that anticipated the “new” rule, it must be borne in mind that in reality that price will rarely have to be paid. Court-made rules are ordinarily applied retroactively, and, even before Griffith , on direct appeal such rules were not applied retroactively only when the rule represented a clear break from precedent. See United States v. Johnson, 457 U.S. 537 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982). In this case two lower courts, the superior court and the appeals court in Rhymes , anticipated Harris , a fact which would ordinarily cut against a determination that the “new” rule was really “new” at all.

If we are to take the California Supreme Court at its word, we must accept the proposition that “Harris ... created a new standard for determining the existence of a prima facie case.” Myers, 43 Cal.3d at 269 , 729 P.2d 698 , 233 Cal.Rptr. 264 . Under the dissent’s reasoning, Ms. Rhymes would win and Mr. Myers would lose because Rhymes’ case found its way into the hands of errant judges, while Myers’ judges followed the law. It is hard to imagine a more arbitrary way to administer justice. 8

*425 V

The state also argues that Harris is wrong as a matter of federal law. The state contends that this court should therefore hold that Myers has not made out a prima facie Sixth Amendment case whether or not Harris has ever been applied retroactively. Myers responds that Harris is based in part on the California Constitution and that this case is really about the consistency with which California has applied an interpretation of its own constitution. We agree with Myers.

We read Harris as an interpretation of both the United States and California Constitutions. The Harris court introduces its discussion of the merits of Harris’ challenge with the statement that the right to an impartial jury drawn from a representative cross-section of the community is guaranteed by the Sixth Amendment of the United States Constitution and Article I § 16 of the California Constitution. 36 Cal.3d at 48-49 , 679 P.2d at 439 , 201 Cal.Rptr. at 788 . In doing so, the court implies that both the state and federal constitutions mandate its holding with respect to challenges to voter registration lists. This interpretation is also supported by the Harris court’s citation to both California and federal cases. 36 Cal.3d at 48-50, 53 , 679 P.2d at 439-40, 442 , 201 Cal.Rptr. at 788-89, 791 .

The history of California constitutional law suggests that the Harris court did not hold that the California Constitution permits a defendant to make out a prima facie challenge to voter registration lists based on general population statistics simply because it believed that federal law permits a defendant to do so. Cf. Michigan v. Long, 463 U.S. 1032, 1040-41 , 103 S.Ct. 3469, 3476 , 77 L.Ed.2d 1201 (1983) (state ground is not independent and adequate ground so as to preclude Supreme Court review if the state court decided the state constitutional issue “the way it did because it believed that federal law required it to do so”). With respect to the right to a jury trial, California has a long history of imposing a higher standard under its constitution than exists under the federal constitution. The Harris court discussed at some length People v. Wheeler, 22 Cal.3d 258, 270 , 583 P.2d 748, 757 , 148 Cal.Rptr. 890, 898-99 (1978) (footnote omitted), an opinion which reviews this history:

In sum, we conclude that the correctness of Harris as a matter of federal law is irrelevant because Harris is independently grounded in an interpretation of the California Constitution. 9

YI

We hold that the California Supreme Court violated the equal protection clause when it denied Myers the retroactive benefit of Harris . We reverse the district court’s denial of the writ of habeas corpus and remand this case to the district court with the direction that it issue the writ and determine a reasonable time in which to retry Myers.

. In Rhymes , the Supreme Court of California, by order, directed the California Court of Appeal to refile an opinion originally published at 130 Cal.App.3d 232 , 181 Cal.Rptr. 764 (1982). Pursuant to the supreme court’s order, the court of appeal refiled the opinion at 170 Cal.App.3d 1100 , 217 Cal.Rptr. 439 (1985).

. In the same opinion, the court reversed Myers death sentence for reasons unrelated to jury selection. He is now serving a life term.

. Griffith was decided only eleven days after the California Supreme Court decided Myers . Myers then filed a petition for rehearing to the California Supreme Court, asking it to reconsider in light of Griffith . The court ordered briefing and denied the petition without opinion.

. An exception is made for the litigant whose cases establishes the rule, because otherwise there would be no incentive for an individual litigant to challenge existing interpretations of law. See Stovall v. Denno, 388 U.S. 293, 301 , 87 S.Ct. 1967, 1972 , 18 L.Ed.2d 1199 (1967).

. As a result of an amendment to the California Constitution passed three years after the grant of hearing in Rhymes , the California Supreme Court no longer follows the unusual procedure of vacating lower court opinions that it decides to review. See Rules 28 and 29 of the California Appellate Rules. Prior to the amendment, California was one of only three states whose highest court vacated appellate court decisions prior to reviewing them.

. The court often transfers cases with instructions to refile the opinion with minor modifications, such as the addition of relevant citations. See, e.g., Zarback v. Superior Court, 763 P.2d 479 , 252 Cal.Rptr. 816 (1988). The court of appeal’s jurisdiction upon retransfer is limited to execution of the supreme court’s direction. M Restaurants, Inc. v. San Francisco Hotel Joint Executive Bd. of Culinary Workers, 124 Cal.App.3d 666 , 177 Cal.Rptr. 690, 693 (1981).

A refiling order appears to be somewhat analogous to a summary affirmance by the United States Supreme Court. The Supreme Court has held that a "summary affirmance settles the issues for the parties,” Fusari v. Steinberg, 419 U.S. 379, 392 , 95 S.Ct. 533, 541 , 42 L.Ed.2d 521 (1975), and demonstrates the Supreme Court’s approval of the judgment of the lower court. At the same time, the Court has warned that a summary affirmance does not necessarily mean that the Court "adopted the reasoning as well as the judgment” of the lower court. Mandel v. Bradley, 432 U.S. 173, 176 , 97 S.Ct. 2238, 2240 , 53 L.Ed.2d 199 (1977). In this case, however, the California Supreme Court's order to refile the Rhymes opinion makes sense only if one assumes that the supreme court agreed with the court of appeal on the acceptability of general population statistics.

.The dissent argues that the refile order cannot be a substantive decision because Article VI § 14 of the California Constitution provides: "Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” The dissent interprets "causes" to mean dispositions on the merits. The problem with the dissent’s argument is that it is inconsistent with the California Supreme Court’s and this circuit’s interpretation of the California Constitution.

In People v. Ford, 30 Cal.3d 209 , 178 Cal.Rptr. 196 , 635 P.2d 1176 (1981), the California Supreme Court disposed of several contentions simply by referencing the opinion of the court of appeal, even though that opinion had been vacated and nullified by the supreme court's grant of a hearing in that case. Against the argument that such an action violated § 14, the supreme court stated that the lower court’s writ *424 ten opinion, although vacated, satisfied the supreme court’s duty to comply with § 14 because "[a] copy of that opinion, of course, was duly furnished to all parties herein, and remains available in the public records of this court and the Court of Appeal.” Ford, 178 Cal.Rptr. at 200 , 635 P.2d at 1180 . In other words, the purpose of § 14 is simply to furnish the parties with an explanation of the appellate court's reasoning, even if that reasoning is contained in a nullified document. In Rhymes’ case, the parties have been furnished two written opinions from appellate courts, so § 14 has clearly been complied with.

Moreover, this circuit in Harris v. Superior Court, 500 F.2d 1124 , 1128 (9th Cir.1974), in an en banc opinion, held that the California Supreme Court's denial of "a habeas corpus petition without opinion or citation” is a decision on the merits. See also La Rue v. McCarthy, 833 F.2d 140, 143 (9th Cir.1987) (interpreting California Supreme Court's denial without explanation of a habeas petition to constitute a rejection of petitioner’s substantive claim); Lewis v. Borg, 879 F.2d 697 (9th Cir.1989).

. The dissent suggests that, assuming Rhymes was decided on the merits, the preferential treatment the supreme court accorded Rhymes was justified, because to reinstate her conviction in order to apply Harris prospectively would be a "harsh result.” This implies that Rhymes’ victory in the court of appeal somehow gave her an expectation of — and presumably an entitlement to — victory in the supreme court greater than that of Myers. Such an argument ignores the fundamental principle that legal questions are reviewed de novo on direct appeal, with no deference to lower court rulings. The California Supreme Court's grant of a hearing in Rhymes’ case put her in an identical position to Myers with respect to the expectation of a new trial based on Harris.

The dissent’s other argument to justify the supreme court's inconsistent treatment — that the court may have wanted to avoid delay in granting Rhymes a new trial — is flawed. The argument begs the question whether Rhymes would be entitled to a new trial in the event Harris were to be given a strictly prospective effect. Once Harris was decided, the retroactivity of Harris was a threshold issue in both Rhymes and Myers . The failure to treat it as a threshold issue may have played a part in causing the inconsistent results. See Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 1069 , 1079 n. 2, 1090-91 n. 7, 103 L.Ed.2d 334 (noting the pitfalls of a failure to decide the retroactivity question promptly).

. Moreover, in this appeal from Myers’ habeas proceeding, we are not reviewing Harris. We are only concerned with equal protection. Even if Harris were decided exclusively on erroneous federal grounds, the state court would still have to apply its erroneous reading evenhandedly. If one person receives the benefit of a state court interpretation of federal law, so should a second — as long as the United States Supreme Court does not decide the issue in the time between the two cases or the state supreme court does not overrule its previous decision.