(Ed’s Note: The following commentary, the last of a two-part package, appeared originally in Joel Fox’s Fox & Hounds blog. It is printed here with permission.)
The Citizens Redistricting Commission is taking a page from Inspector Clouseau, the bumbling and incompetent French detective in the Pink Panther movies whose crime investigations always suffer from his own ineptitude. After a corrupt process of selecting a line-drawing specialist which I detailed in my post last week, it now turns out that the law firm they hired as their Voting Rights Act “expert” is equally tainted.
The law creating this commission is quite specific: Section 8253 of the Government Code provides: “The commission shall require that at least one of the legal counsel hired by the commission has demonstrated extensive experience and expertise in implementation and enforcement of the federal Voting Rights Act of 1965 (42 U.S.C. Sec 1971 ff).”
The commission put out bids in order to engage a firm to do this. The choice narrowed down to two well-known law firms, Nielsen Merksamer and Gibson, Dunn & Crutcher. But then Nielsen Merksamer was conflicted out because it is a “lobbying firm” (not unusual for public law firms). I wrote at the time that the real agenda here was to hire as VRA counsel one George H. Brown who served with Commissioner Maria Blanco on the Lawyers Committee for Civil Rights, a far left bunch of activist attorneys who pass their time with immigrant asylum issues and assuring convicted felons the right to vote. Brown was part of the Gibson Dunn bid along with well-known Republican attorney Daniel Kolkey.
So the commission happily hired Gibson Dunn, only to be informed a week later that this firm too is a “lobbying firm,” and what’s more the firm has made campaign contributions.Neither of these facts apparently were known to commissioners or their staff when they were awarded the business – but I knew them. It is well established that Gibson Dunn is a player in Washington, D.C., politics. As they were being awarded the contract, I searched the disclosure database of the Federal Elections Commission and found that Brown, identified as a Gibson Dunn attorney, made $1,500 in contributions to President Obama in 2008 (news accounts say the actual number is $4,300) and gave $250 to the Democratic National Committee just six months ago. Kolkey gave or helped raise $6,000 for Republican presidential candidates in 2008, gave $450 to Congressman Dan Lungren and $490 to the California Republican Party. Apparently the commission’s new definition of impartiality is to have given money to the governing bodies of both political parties.
In conflicts law, the rule is “knew or should have known.” Surely the commissioners should have known about these conflicts. I knew about them. And these are the people we expect to form new legislative and congressional district lines. We will have to wait and see if these new facts have any impact on the commission, for the moment they have put the Gibson Dunn contract on hold.
But wait, there’s more.
Remember that part of the law that says “demonstrated extensive experience and expertise in implementation and enforcement of the federal Voting Rights Act.” A careful look at both Brown and Kolkey shows they not only lack “extensive experienced” they have no experience.
Kolkey is a respected former associate justice of the court of appeal, and was an author of Proposition 20 that brings congressional districts under the commission. He was counsel to former Gov. Pete Wilson in the 1990s when redistricting was a major issue. But his Voting Rights Act “extensive experience” in his application, does not include any direct Section 2 or Section 5 litigation, which is what the Voting Rights Act is all about.
Brown is even less qualified. He has dealt with election matters with the Lawyers Committee for Civil Rights, but not federal Voting Rights Act litigation. His professional page at Gibson Dunn notes that he “practices in the areas of complex securities litigation, accountants’ liability and corporate governance.” No voting rights practice is mentioned.
His application does cite two VRA cases, in Modesto and Madera, but these were filings under the California Voting Rights Act, not the federal Voting Rights Act. There is a difference; they are different laws. The California Voting Rights Act deals with large districts, which are not a commission concern. In hiring Brown, the commission decided it simply did not matter that his “extensive experience” was with another law. This commission probably thinks that because a rose smells better than a cabbage it will also make better soup.
So now this commission has rejected a “lobbying firm” because it is a ”lobbying firm” only to hire a “lobbying firm” with the attorney it wants, even though that attorney has no qualifications for the job.
The commission really should hire the fictional Inspector Clouseau; they could not be more bumbling than he was. But at least Clouseau knew how to end a movie. This commission is still in its first reel.
Ed’s Note: This commentary is the second part of a redistricting series by Quinn, which originally appeared in Joel Fox’s Fox&Hounds blog. It is reprinted here