September 14, 2009
Elaine M. Howle, California State Auditor
Bureau of State Audits
555 Capitol Mall, Suite 300
Sacramento, CA 95814
Attn: Daniel Claypool, Bureau of State Audits, danc@bsa.ca.gov
Sharon
Brumley, Bureau of State Audits, sharonb@bsa.ca.gov
Re: Comments on Draft Citizens Redistricting Commission Regulations
Dear State Auditor Howle:
The California Voter Foundation greatly appreciates the careful
attention you and your staff have invested into the development
of regulations that will guide the creation of the new Citizens
Redistricting Commission, enacted through Proposition 11 passed
by California voters last November.
Over the past several months, I have participated in a working
group with a number of individuals representing various voting
and civil rights organizations that has reviewed the draft regulations.
We have suggested a number of changes, both minor and substantive,
which are summarized in our joint letter and accompanying appendix.
In addition to those suggestions, on behalf of the California
Voter Foundation, I wish to express concerns with how “state
office” and “appointed to state office” are
defined in the draft regulations (§ 60804 and § 60828)
and suggest ways these definitions can be improved in order to
maximize the applicant pool and more easily verify which applicants
are qualified to serve on the commission.
The “state office” definitions are extremely important
because they dictate who is eligible and who is ineligible from
applying to serve on the Citizens Redistricting Commission. While
most of the Proposition 11 provisions and restrictions are clearly
spelled out, the provision in question is one that requires interpretation.
Section 8252 of the measure states that an individual is ineligible
for applying to serve on the commission if, within the 10 years
immediately preceding the date of application, the applicant,
or a member of his or her immediate family has:
“been appointed to, elected to, or have been a candidate
for federal or state office”.
How expansively or narrowly this prohibition is defined is open
to interpretation, as is noted in the State Auditor’s Memorandum
#2. The California Voter Foundation believes that on its face,
the language appears to be describing state elective office,
since only these types of offices are the kind that someone could
be a candidate for or be elected to; and in this interpretation,
the idea of appointing someone is taken to mean appointed to
fill an elective office vacancy.
However, the State Auditor has interpreted the term “state
office” to apply, rather, to “every office, agency,
department, division, bureau, board, and commission within the
government of the State of California.” We believe this
interpretation of the definition of “state office” is
overly broad and applying it would do a disservice to the initiative
by unnecessarily limiting the number of qualified applicants.
When one considers that this prohibition would apply to not
just every current appointee, but anyone ever appointed in the
past ten years, along with their immediate family members (as
broadly defined by the initiative to include parents, siblings
and in-laws), the draft definition would effectively bar potentially
hundreds of thousands of people from applying to serve on the
commission.
Furthermore, many citizens who serve on boards and commissions
do so on a voluntary basis; they may receive some meager per
diem or stipend, but for the most part, board and commission
appointees are providing volunteer services to the State of California,
and are likely to be the very kinds of people who would be interested
in serving on the Citizens Compensation Commission.
The philosophical question that the State Auditor needs to consider
is whether to create a narrow funnel on the front end of the
application process that dramatically restricts applicants in
such a fashion in order to effectively preclude any possibility
of a political insider or crony from applying and serving on
the commission, or whether to have a wide funnel on the front
end and rely on other provisions of the initiative to weed out
any applicants who have a potential partisan or political agenda?
It is the view of the California Voter Foundation (CVF) that
there are many other opportunities in the applicant selection
process to review applicants for their ability to be impartial;
indeed, it is one of just three qualities that determine whether
an applicant is qualified to serve on the commission or not.
CVF believes it is better to allow a wide funnel at the beginning
of the application process and rely on the work of the Applicant
Review Panel, the public comment process, and the legislative
strikes process to weed out any applicants with a partisan or
political agenda. To place such a narrow funnel on the front
end of the application process will do a disservice to the initiative,
in that it will wipe out large numbers of potential applicants
who otherwise may be highly qualified to serve on the commission,
and would be inclined to do so.
Specifically, CVF suggests revising § 60828 to read as
follows:
““State office” means every state elective
office within the government of the State of California.”
Another definition relating to “state office” is
the definition for the term “appointed to federal or state
office”, for which a definition is also included in the
draft regulations and is also open to interpretation, as noted
in Memorandum #2. The initiative does not specify to which appointing
authority this restriction applies. The State Auditor has drafted
regulations that would include all appointments made by the Governor
and the Legislature. However, the initiative states several times,
and very clearly, that its purpose is to shape political districts
free from legislative influence. For example, in the Findings
and Purpose, under (d) it says:
“The reform takes redistricting out of the partisan
battles of the Legislature”
Section 3.3 of the initiative, which adds Section 2 to Article
XXI of the California Constitution states,
“The selection process is designed to produce a Citizens
Redistricting Commission that is independent from legislative
influence…”
Based on these facts, the California Voter Foundation believes
if the definition of state office remains as currently drafted,
it should be applied to appointments made by the Legislature
and not those made by the Governor.1 Or, if you do keep the Governor’s
appointees on the prohibited list, consider limiting it to only
those that require Senate confirmation.
Yet another way the definition for “appointed to state
office” could be narrowed is to include only salaried appointments
in the restriction. The basis for this approach is simple: someone
who has been appointed to a paid, salaried position from a legislator
or Board of Equalization member is beholden to their appointee
for their livelihood and may be perceived as owing a debt or
favor to that person. The advantage of this approach is that
it would be easy for the applicant, public and the Applicant
Review Panel to verify whether an applicant is indeed qualified
to serve, since whether a person is on the State of California
payroll is a matter of public record.2
Thus, we have suggestions for four ways to narrow the definition
of “state office” and “appointed to state office” that
would greatly expand the number of people who would be eligible
to apply for the new commission:
1) define “state office” as “state elective
office”;
2) remove appointments made by the Governor from the list of
prohibited appointees;
3) include only those apointments made by the Governor that require
Senate confirmation; and
4) only include salaried appointees in the definition.
One additional
suggestion is to change the word limit in § 60847,
relating to the Phase II application, from 250 words to 500,
as 250 words may unnecessarily restrict applicants’ abilities
to adequately express their qualifications to serve on the commission.
Thank you for your consideration of these suggestions. Please
feel free to contact me at kimalex@calvoter.org or at (916) 441-2494
if you have any questions. And again, thank you to you and your
staff for your outstanding work to develop these regulations.
Sincerely,
Kim Alexander
President
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