I find this quite troubling, for two reasons.

        First, as was previously aired, the Commission had four finalists.  Two of them were very likely ineligible, for the reasons stated here by Mark Scarberry.  Those reasons may well have been the reason for the early dropping of those candidates from the list.  The two remaining candidates, Nielsen Merksamer and the particular attorneys at Gibson Dunn, have clear and strong Republican affiliations.  I have no objection whatever to Republicans (or Democrats) controlling the redistricting process and milking it for such partisan advantage as they may think they can derive.  But that is if they earn the right to do so the honest way, by winning legislative and gubernatorial elections.  Propositions 11 and 20 were sold as assuring nonpartisan redistricting.  That claim was some combination of deluded and deceptive.  But there was no necessity for the partisanship to be this flagrant.

        Second, there is a particular objection to Daniel Kolkey.  He was the lawyer whose administrative snafu resulted in textual discrepancies in Proposition 77, the unsuccessful redistricting initiative the Republicans put on the ballot in 2005.  The result was that the text circulated to voters was different from the text filed with the Secretary of State.  Anyone could have made such an error and Mr. Kolkey's administrative foul-up is no basis for objecting to his serving as counsel to the redistricting commission.  But his subsequent conduct was highly objectionable.  He discovered the error two or three weeks before the counting of the signatures was completed, yet he did not disclose the error to the (Republican) Secretary of State until AFTER the sufficiency of the signatures had been certified.  He then notified the Secretary of State and the (Republican) counsel to the (Republican) governor.  But that group sat on the information for about five weeks before finally notifying the (Democratic) attorney general.

         These failures to disclose highly material information had the foreseeable consequences of, first, making it more likely that the Secretary of State would certify the signatures and thereby be more or less committed to the correctness of that certification and, second, shortening by about two months the ability of the courts to fully consider the question of whether the proposition should be placed on the ballot.  The entire sordid story is told well by Judge Blease in the Court of Appeal's decision in the Costa litigation of that year.

          It is hard to be cheered by the selection of a lawyer with a record of ethically dubious (to be polite) conduct in a partisan-charged redistricting controversy as counsel to the Redistricting Commission.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148


________________________________
From: election-law-bounces@mailman.lls.edu [election-law-bounces@mailman.lls.edu] On Behalf Of Douglas Johnson [djohnson@ndcresearch.com]
Sent: Friday, March 18, 2011 8:22 PM
To: election-law@mailman.lls.edu
Subject: [EL] CA Redistricting Commission hires Voting Rights Act attorneys

FYI: the California Citizens Redistricting Commission today selected Dan Kolke and George Brown of Gibson Dunn and Crutcher as their Voting Rights Act counsel.

- Doug

Douglas Johnson
Fellow
Rose Institute of State and Local Government
m 310-200-2058
o 909-621-8159
douglas.johnson@cmc.edu

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