February 22, 2010

Elaine M. Howle, California State Auditor

Bureau of State Audits
555 Capitol Mall, Suite 300
Sacramento, California 95814

Attn: Donna Neville

Legal Division

RE: Citizens Redistricting Commission – Regulations for Final Phase of Selection Process

Dear Ms. Howle:

The State Auditor has requested comments regarding the process by which the final six members
of the Citizens Redistricting Commission will be selected. We, the undersigned, thank you for
this opportunity to provide our input. We have compiled a list of recommendations that we hope
will be helpful to you in developing regulations to guide this final stage of the selection process.

At the outset, we commend the State Auditor for undertaking this additional rulemaking process.
Because the Voters FIRST Act is silent regarding the procedures that the first eight appointees to
the commission are to follow in selecting the remaining six commission members, we believe it
is important for your office to promulgate regulations spelling out the specifics of how this
aspect of the selection process will be carried out.

In the absence of such regulations, it seems inconceivable that the first eight appointees will be
able to carry out their primary task of collecting and processing information about the remaining
applicants and deliberating and voting on the remaining six slots, and at the same time make the
requisite preliminary decisions about their operating procedures. We note here that the Voters
FIRST Act provides the first eight appointees with as little as 41 days (extending from no later
than November 21 to no later than December 31) to appoint the remaining six commissioners, a
period that occurs during the holiday season.

Accordingly, we recommend that the State Auditor promulgate regulations addressing the
following items:

1. The State Auditor should remind the eight appointees of the task before them,
specifically, their obligation under the Voters FIRST Act to ensure that the
commission reflects the full diversity of California. The State Auditor should provide
the eight appointees with the following instructions:
• that they are required by section 8252(g) of the Government Code to choose the
remaining six commissioners to ensure that the commission reflects the diversity of
California, as well as to choose the remaining six commissioners based on relevant
analytical skills and the ability to be impartial;

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 • that they should not use formulas or ratios in making their choices to ensure that the
commission reflects California’s diversity;
• that they should use the definitions of “ability to be impartial,” “diversity,” and
“relevant analytical skills” set forth in § 60800, § 60815, and § 60827 of the
regulations;
• that they should be mindful that, as defined in § 60815, the term “diversity” refers to
the characteristics of California’s population as a whole, rather than the
characteristics of California’s registered voters; and
• that they should seek to achieve representation from a range of racial and ethnic
minority groups, that representation on the commission from one racial or ethnic
minority group alone does not reasonably reflect the state’s racial diversity, and that
the appointment of merely one individual from a particular racial or ethnic minority
group may not reasonably reflect the state’s racial diversity with respect to that racial
or ethnic minority group..

2. The eight appointees should hold their deliberations regarding the final six
appointees in public. We also request that these meetings, like the meetings of the
Applicant Review Panel, be publicly broadcast.

3. The eight appointees should follow meeting rules governing that of an official body.
We recommend that the appointees follow Robert’s Rules of Order. We also think the
regulations should strongly encourage the appointees to attend at least the first meeting in
person, and to begin by selecting a temporary chair. We would like the regulations to
reflect that five of the eight appointees, regardless of party affiliation, constitute a
quorum.

4. The eight appointees should have access to the remaining applicants’ applications
and interviews. We think the regulations should encourage the eight appointees to
conduct interviews themselves if they think it is necessary, and if such interviews take
place, they should be conducted in public.

5. The State Auditor should make arrangements for the eight appointees’ first
meeting. The State Auditor should:
• determine a location where the eight appointees will conduct their deliberations;
• appoint a convenor to facilitate the first meeting of the eight appointees, at least to
serve until the appointees select a temporary chair (see #3 above); and
• take the responsibility to ensure that the meetings of the eight appointees are publicly
broadcast (see #2 above).

6. The applicants should be reimbursed for travel and meeting-related expenses they
incur during the final stage of the selection process.

7. The State Auditor should provide guidance to the eight appointees on the methods
by which they could select the final six commissioners, and should specify the
possible advantages and disadvantages of each method in achieving consensus and
meeting the requirements of Government Code Section 8252(g). This guidance

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 should address different alternative methods for nominating and voting on the candidates
for the final six positions, including consideration of each candidate individually and
consideration of slates of candidates. For each of the foregoing methods, the guidance
should address the different methods of nominating the candidates to be voted on,
including the different manners in which slates can be developed and proposed.

8. If requested by the eight appointees, the Applicant Review Panel and its staff should
provide the eight appointees with information and guidance regarding the selection
process and the applicant pool. The Panel and its staff could, for example, provide the
eight appointees with demographic analyses and demographic breakdowns of the
applicant pool. The information provided to the eight appointees and the
communications between the eight appointees and the Applicant Review Panel and its
staff should be made public.

9. The regulations governing public comment during the Applicant Review Panel’s
selection of the first eight appointees should be extended to apply to the eight
appointees’ selection of the final six appointees.

10. The eight appointees should be compensated for their work in selecting the final six
commissioners, at the rate of $300 per day. The State Auditor should determine what
type of work they will be compensated for, based on common practice of state
commissions.

11. The State Auditor should provide the eight appointees with administrative,
technical, and clerical support in the same way that it must provide support to the
Applicant Review Panel under § 60835. We have suggested some language below that
adapts § 60835 for this phase of the process.

Proposed Language:
(a) The State Auditor should provide the eight appointees with administrative, technical,
and clerical support as needed by the eight appointees to carry out their
responsibilities under the Act. This support shall include, but not be limited to, the
provision of office equipment, facilities, and staff sufficient to perform the following
tasks:
(1) Process applications.
(2) Collect information concerning applicants.
(3) Schedule meetings.
(4) Maintain files.
(5) Make travel arrangements.
(6) Communicate with the public regarding decisions.
(b) The State Auditor should provide the eight appointees with legal counsel. To the
extent permitted by law, all work performed by the State Auditor’s legal counsel and
all communications between the State Auditor’s legal counsel and the panel shall be
confidential and protected from disclosure by any applicable privileges.

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12. The State Auditor should provide the eight appointees with training prior to the
selection process in a manner that is similar to the training provided to the
Applicant Review Panel in § 60832. We have suggested some language below that
adapts § 60832 for this phase of the process.

Proposed Language:
Prior to any of the eight appointees performing his or her duties, the State Auditor shall
provide the appointee with training in preparation for the performance of those duties.
The training shall include, but not necessarily be limited to, all of the following subjects:
(a) The requirements for conducting a public meeting, including, but not limited to, the
requirements imposed by the Bagley-Keene Open Meeting Act (commencing with
section 11120 of the Government Code).
(b) The duties of the eight appointees as described in the Voters FIRST Act and the
regulations implementing its provisions.
(c) California’s diverse demographics and geography.
(d) The responsibilities of the commission as set forth in the Voters FIRST Act, the
United States Constitution and the Voting Rights Act of 1965 (commencing with
section 1971 of title 42 of the United States Code).
(e) The process for performing redistricting, including, but not limited to, the use of
computer software to draw district lines.

13. The State Auditor should clarify the prohibition on a commissioner’s participation
in certain civic activities after serving on the commission. The Voters FIRST Act
added Article XXI, Section 6 to California’s Constitution, which provides:

A commission member shall be ineligible for a period of 10 years beginning from

the date of appointment to hold elective public office at the federal, state, county,
or city level in this State. A member of the commission shall be ineligible for a
period of five years beginning from the date of appointment to hold appointive
federal, state, or local public office, to serve as paid staff for the Legislature or
any individual legislator or to register as a federal, state, or local lobbyist in this
State.

The Act does not specify which entity will be responsible for interpreting and enforcing
the foregoing restrictions. Thus, while it does not clearly provide the State Auditor with
the authority to do so, neither does it prohibit such action. We believe that there are
several reasons that the State Auditor should promulgate regulations interpreting the
scope of the prohibitions of Article XXI, Section 6 in this rulemaking. First, based on
our discussions with potential applicants for the commission, we have learned that many
applicants are thinking seriously about the impact of these prohibitions on their civic
activities after being appointed to the commission, and it is very possible that the
commissioners will want to focus on clarifying these restrictions as soon as the
commission is seated. As a result, the commissioners could spend valuable time
discussing and determining the scope of the prohibitions that could otherwise be spent on
the important tasks involved in their redistricting duties. The State Auditor could
forestall this process by promulgating regulations in this rulemaking.

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In addition, as commission applicants proceed through the remaining stages of the
application selection process, it is important that they have a clear understanding as early
as possible regarding the limitations on their civic activities after appointment to the
commission. This will enable applicants to make better-informed decisions about
whether to pursue their applications. If interpretation of the limitations on commission
service is delayed until immediately before or after the commissioners are finally
selected, the commissioners who are seated may then learn that they must choose
between their commission service or engaging in prohibited civic activities, and may
decide to withdraw from consideration or resign from the commission. At that point, it
would be burdensome and time-consuming to replace individuals who choose to
withdraw or resign.

In addition, through its management of the selection process for the commission
applicant pool and its promulgation of related regulations, we believe the State Auditor
has developed significant expertise in understanding the Act’s conflict of interest
provisions, the intent of its prohibitions on activities that would impair commissioners’
ability to be impartial, the different types of civic activities that could be covered by the
Act’s provisions, and the legal issues that affect the constitutionality of the Act’s
provisions. In fact, the State Auditor addressed such issues in detail in Memorandum #2,
one of the memoranda accompanying the initial proposal of the regulations governing the
selection of the commissioners. We believe this expertise would be valuable in the
interpretation of the prohibitions on the future civic activities of commissioners.

Finally, we believe the State Auditor is well-positioned to solicit and incorporate public
comment on the interpretation of the Act’s prohibitions on the future civic activities of
commissioners. The State Auditor broadly disseminated its proposal on the regulations
for the selection of the commission applicant pool, provided meaningful opportunities for
stakeholders and the public to provide comment on its proposal, and considered these
comments when promulgating its final regulations. If the State Auditor includes
regulations interpreting the prohibitions on future civic activities in the rulemaking on the
final stage of the selection process, it will provide a timely opportunity to effectively
incorporate public comment into those regulations.

We would also like to recommend that some aspects of the prohibitions on future
activities be clarified. As a general matter, we believe that the State Auditor’s approach
in narrowly construing the conflict of interests that could disqualify potential applicants
from commission service under Section 8252(a) of the Government Code should be
applied to the interpretation of the scope of the restrictions on future activities. In
Memorandum #2, the State Auditor notes that under California law, any restriction on the
right to serve in public office is subject to strict scrutiny review by the courts and must be
justified by a compelling state interest and be narrowly tailored to avoid being overbroad.

Insofar as many of the Act’s prohibitions on future civic activities would compel
commission applicants to choose between service on the commission or service in many
public offices during the five- or ten-year period after appointment, we believe such

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prohibitions should be considered as restrictions on the right to serve in public office.
Thus, we urge the State Auditor to narrowly construe the Act’s prohibitions on future
civic activities and apply them only where justified by a compelling state interest. We
recommend that the State Auditor consider the factors set forth in Memorandum #2, such
as the place in which the civic activities occur, and the extent to which the activities
compromise the commissioners’ ability to make decisions unaffected by the interests of
the state’s partisan political leadership or create the appearance of such compromise.

For example, we recommend that the State Auditor narrowly construe the ten-year ban on
service in elective office. It is not clear whether the ten-year ban on service in elective
office at the “federal, state, county, or city” level applies to elected positions on the
governing bodies of other political subdivisions with boundaries that may not necessarily
coincide with those of such jurisdictions, or that do not have authority to make policies
that affect all of the residents of such jurisdictions. In California, there are several
elected positions on education and school boards with boundaries that may not
necessarily coincide with city or county lines. These include elementary, middle school,
and high school districts, unified K-12 school districts, and community college districts.
In addition, there are elected positions on “special district” boards in California which
address such matters as water and other utility issues, fire protection, flood control, and
health care. As is the case with education and school boards, the boundaries of these
districts may not necessarily coincide with city or county lines, and they are not
considered city or county political subdivisions. California’s elected offices also include
positions on local neighborhood councils which generally only address matters affecting
individuals who live or work in the boundaries of their respective neighborhoods.

In adopting regulations spelling out the scope of the ten-year ban, the State Auditor
should explicitly state that the ten-year ban does not apply to elected K-12 school board,
community college trustee, special district, or neighborhood council seats. As explained
above, these positions are not clearly covered by the language of the Act, which specifies
“federal, state, county, or city” level positions. We also note that the drafters of the Act
have in other cases used broader language when intending to cover a wide range of public
offices – for example, Section 8252(a)(2)(A)(vi) of the Government Code disqualifies
potential applicants for certain contributions made to any “congressional, state, or local
candidate for elective office.” Had the drafters of the Act intended that the ten-year ban
apply to elected positions other than those clearly specified, they could have drafted the
language accordingly.

We also recommend that the State Auditor narrowly construe the five-year ban on service
in appointive office. In particular, the five-year ban on appointed positions should not
apply to appointed positions on local public bodies which are purely advisory in nature,
such as Parks and Recreation Commissions, or Cultural Heritage Commissions.

Also, the five-year ban should not apply to federal judgeships. The State Auditor’s
proposed rulemaking should incorporate the same concept of “appointed to federal or
state office” used in § 60804 of the regulations. In other words, the five-year ban on

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 appointed positions should apply only to positions appointed by a specific set of actors
(for example, the Governor, state legislators, and Board of Equalization members).

We note that the positions set forth in this letter are not meant to be an exhaustive list of
all of the positions that should be excluded from the Act’s restrictions on future activities.
We provide them merely as examples, to illustrate the approach we believe the State
Auditor should take when narrowing the scope of the Act’s restrictions.

Thank you for the opportunity to submit our comments. We encourage you to contact us if you
have any questions.

Sincerely,

Titi Liu Stewart Kwoh

Executive Director President and Executive Director
Asian Law Caucus Asian Pacific American Legal Center

James P. Mayer Alice A. Huffman

Executive Director President
California Forward California State National Association for the
Advancement of Colored People (NAACP)

Robert M. Stern Janis R. Hirohama

President President
Center for Governmental Studies League of Women Voters of California

Nancy Ramirez Arturo Vargas

Western Regional Counsel Executive Director
Mexican American Legal Defense and National Association of Latino Elected and
Appointed Officials (NALEO) Educational
Fund