Opinion: Redistricting: Partisanship clouds creation of fair political boundaries

(Ed’s Note: The following commentary originally appeared in Joel Fox’s Fox & Hounds blog. We use it here by permission.)

The Citizens Redistricting Commission, built upon a hopeful ideal of enhancing political competition in legislative and congressional districts, has now descended into a cesspool of corruption, and the promise of fair new districts has been compromised by brutal partisan politics instigated by the commission itself.

At its Sacramento meeting last weekend, the commission was given a chance to choose for the vital project of actually drawing the new districts two firms, each of whom had ties to past partisan activities. Ignoring the need for political balance in its line drawing, the commission chose a firm with, in the words of Sacramento Bee political columnist Dan Walters, “indirect but unmistakable ties to Democrats.”

This firm is called Q2 Data and Research, based in Berkeley and headed by Karin MacDonald, who also heads the Statewide Database, the census and political data bank for use in redistricting. The political tie to the Democrats comes from Professor Bruce Cain, an owner of Q2, who started the database when he worked as chief consultant for Assembly Democrats in the 1981 redistricting.

That was a long time ago, but more recently in 2003, Cain testified in support of the current legislative and congressional districting gerrymander in a lawsuit challenging that plan. (Disclosure: I was an expert witness for three cities challenging the district lines). Cain, then still indirectly involved with the legislature through the database, tried to convince the court it was not a bipartisan gerrymander.

The whole reason for creating this commission was voter unhappiness with the lack of choice in the current gerrymandered plans. The commission seemed uninterested or unaware of Cain’s past support for gerrymandered districts, although it did vote to wall off Cain from any involvement in this year’s plans.

More disturbing was the manner in which the commission excluded from consideration the bid of the Rose Institute, academic redistricting experts at Claremont McKenna College, which like Q2, has “indirect but unmistakable ties”, this time to Republicans. (Disclosure: I am on the board of governors of the Rose Institute).

This was done by commission staff writing the bid in such a way that the bidder had to disclose all sources of income over the past ten years. This was not hard for a small firm like Q2; it was impossible for the Rose Institute, part of a large college with thousands of contributors whom it could not disclose for IRS reasons even if it wanted to. The Rose Institute certified that none of its financial backers posed a conflict of interest, but that was not enough for the commission.

In a performance that would have done Casablanca’s Captain Renault proud, the commission found itself “shocked, shocked” that Rose could not disprove a negative, that it had a conflict, and summarily dismissed their bid, thus forfeiting any chance for political balance in its line drawing team.

This might be hardball politics, but it was not illegal. However, the next step almost certainly violated the commission’s own rules and regulations, if not state contracting law.

The original bid required a bidder to show experience in redistricting at the level of California’s most populous metropolitan areas, a sensible requirement in a state of 37 million people. This was later refined to mean a Metropolitan Statistical Area, a census term for large urban areas. But after the bid had gone out, on the last day to file an intent to bid and with no prior notice to the commission or to the public, the commission staff changed the requirement to simply experience in a large incorporated city.

This supposed technical change was of major importance, and the commission’s executive director wrote this author that it was done to expand the pool of bidders. What he did not say was that Q2 Data and Research could not meet the original commission-approved and published standard. So that standard was changed to qualify the one bidder that was otherwise disqualified. Of course, nothing in the bid package or in commission regulations gave the staff the right to rewrite the bid so its favored bidder could qualify, but that is what happened.

This action was brought to the attention of the commission, but they simply chose to ignore it, concentrating instead of ridding the line drawing staff of any semblance of bipartisanship.

Was this action illegal? That will be up to a court if a lawsuit is brought. It is, however, beyond question that the bidding process was corrupted by rewriting the bid to qualify an otherwise unqualified bidder.

So how did we get to this point where the commission staff felt it had to taint the bidding process to get the job for its favorite? For that we must go back to the initial process of establishing this commission, a role assigned in the law to the State Auditor.

The Auditor, a politically appointed official, quickly came under pressure from racial and ethnic activist groups to assure that the commission was reflective of the state’s population and its racial diversity. I noticed that the Auditor was eliminating white and conservative applicants from the pool who could not show an “appreciation of the state’s diversity.” For a short time in 2010, I participated in meetings with some of the activists and at one point I naively opined that the objective of the new law was to create competitive districts. I was quickly corrected; the objective is to give representation to “underrepresented” minorities. This is not an illegitimate goal, but it soon became the only goal.

The result was a pool of weak Republican candidates and highly ideological Democrats, and that is what emerged when the commission was finally chosen. The five Republicans include two smart and sophisticated individuals, but also two with no sense of the state’s political complexity and who are led around by the ideologues. The independent pool, contributing four commission members, includes three people who are registered decline to state because the Democratic Party is not left-wing enough for them. The Democratic pool includes one Democrat who seems interested in doing a good job and four who clearly came to the commission with an ideological agenda from the left.

A good example is Commissioner Maria Blanco, a political activist long involved with left-wing interest groups. Blanco was for three years executive director for the Lawyers Committee for Civil Rights, a group that spends its time on ideologically driven legal issues like immigrant asylum and voting rights for convicted felons. Last week, Blanco helped engineer the selection of a Voting Rights Act attorney who also serves on the Lawyers Committee for Civil Rights. That the Auditor could have viewed Blanco as “impartial”, the prime qualification for commissioners, defies common sense and illustrates the dismal job done by the Auditor. Nowhere among the pool of candidates or the commissioners do we find an activist with tax groups, crime fighters, or any of the usual suspects on the political right.

Not only was the selection of the members flawed, but so was selection of the staff. After the Auditor finished its work, Secretary of State Bowen’s office took over to select the permanent staff. The process was conducted entirely in secret and out of this process came Daniel Claypool, the commission’s new executive director, who on his own Facebook page describes himself as a “progressive Democrat.” When asked by this author about his political affiliations, Claypool declined to answer.

So it should come as no surprise that an ideologically driven commission and staff would fight to exclude from its line drawers any representation from the political right. While Karin MacDonald is a decline to state voter, a close look at the team she assembled shows only a background in causes dear
to the political left, as one would expect of an outfit located in Berkeley, and nothing remotely associated with the center or the right. MacDonald too has done work for the Lawyers Committee for Civil Rights.

The districts that emerge from this process are likely to reflect ethnic politics, not the broad based political competition intended by the voters in creating this commission. Excluding Republicans from the line drawing process, as was done by manipulation of the bid, opens the door to a peculiarly odious form of racial gerrymandering called “influence districting”. These are districts where populations of reliable Democrats are spread among the districts in the name of minority voting rights, but where the actual effect is not to elect more minorities, but more Democrats. (This is different from creating legitimate Voting Rights Act districts, which is required under law.)

The racial/ethnic criteria will trump the compactness and geographic criteria, to justify drawing racially oriented districts intended to achieve a political end. The political end is to strip Republicans of their remaining clout in the legislature by assuring that the final map will give Democrats two thirds majorities in the both houses. That this will be attempted is beyond question since racial politics were the motivating factors in forming the commission in the first place. I have been down this road before, and I will know it when I see it.

The sad story of California’s first redistricting commission is also embryonic of the hatreds and bile plaguing American and California politics. The ethic activists who have taken over the commission view Republicans as almost a white colonial power denying an emerging California population their rights through racist immigrant bashing, and tax and spending policies that deprive people of color their share of the public goodies.

Whether Republicans deserve this fate is certainly debatable and today’s California Republican Party commands little affection or respect among the vast majority of California voters. That said; it was the intent of the voters that even scoundrels should have a fair shot. It was never their wish or desire that the redistricting commission they hopefully created would be so obviously biased and dishonest in its actual behavior.

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