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California´s experiment isn´t a good one for latinos

MÁS EN ESTA SECCIÓN

Fighting Sargassum

Community Colleges

COMPARTA ESTE CONTENIDO:

California is about to embark on an experiment in legislative redistricting.  Unfortunately, the results thus far do not augur well for Latino input into a decision-making process that will determine the boundaries of the state's senate and assembly districts.  In November 2008, its voters approved Proposition 11, which removed political redistricting functions from the 120-member elective legislature to a non-elected Citizen's Redistricting Commission, consisting of 14 members.

This transfer of power to a non-elected body just when Latinos are becoming a major legislative force is another example of changing the rules whenever Hispanics and other communities of color start to secure access to the political process.

Apart from this criticism, there are two major concerns surrounding the passage of Proposition11.

First, the application process for becoming a commissioner is skewed against Latino representation. 

Second, the governing standards for applying the federal Voting Rights Act will not protect all Latino communities.

The application process, which closed Feb. 16, was not only very cumbersome; it worked to the community's disadvantage. Only 11.5%  - 3,525 out of 30,720 applicants  -  were Latino. This contrasts to California's 36.1% Latino population.

In the initial selection process, the applicable statutory language gives equal weight to the two major political parties. A review panel will select only 120 for further interviews and review. Forty must be registered as Democrats and 40 as Republicans. The remaining 40 may belong to other parties or list their affiliation as "declined to state." 

Since there are more Latinos registered as Democrats than Republicans, giving equal weight and status to the Republican Party only serves to limit structurally the number of Latinos in the initial pool.

Part of the problem is no doubt attributable to the qualifications all applicants must meet.  In recent years, as the number of Latino legislators increased, there was a corresponding increase in the number of staff members and consultants.  Yet the statutes and regulations governing the application process specifically exclude such individuals.

Also, if you participate in the governance of a political party or a central political party committee, you were similarly excluded.  Finally, if you provided a contribution of $2,000 or more in a given year to any candidate for congressional, state legislative or local office, you were also excluded.

This is not a complete list of statutory exclusions.  Given that Latinos are starting to participate actively in political party governance and becoming involved in numerous campaigns across the state for local offices after years of discriminatory practices, they are now being penalized for securing this greater access.

Although the selection process is not completed, the additional structural deficiencies will not increase the likelihood that the Commission will be reflective of the State's racial and ethnic diversity.

The initial applications will be screened to determine if they meet basic eligibility requirements. Applicants are then required to complete a supplemental application.    Thereafter, an Applicant Review Panel consisting of three accountants will select 120 applicants - 40 registered as Democrats, 40 Republicans, and 40 who decline to state party affiliation or are registered with another party.

Out of this pool of 120 applicants, the Applicant Review Panel then selects 60 - 20 each Democrats, Republicans, and 20 who decline to state.  This list is further culled by four legislative leaders, each of whom exercises an option of striking no more than two members from each of the three 20 member sub-pools.  From this culled list, the State Auditor will then randomly select a total of 8 commissioners - 3 each from the Democratic and Republican Party sub-pools and 2 from the decline-to-state/other parties sub-pool.

Finally, the 8 selected commissioners will pick the last 6 commissioners - 2 from each of the sub-pools.  Each of them must have been approved by at least five votes - 2 votes registered Democrats, 2 registered Republicans and 1 from the third sub-pool.

In the past, in the games of chance and randomness, and the application of so-called neutral criteria, Latinos have not necessarily benefited, especially when the distribution of government resources and jobs is involved.  Thus, there is no expectation that this experiment will be any different and reflect California's diversity.

Since the initial applicant pool is only 11% Latino and the selection process unfolds from that small pool, then the prospects of Latino representation on the Commission are diminished.  As noted in the statutory language, although the final six commissioners shall be "chosen to ensure the commission reflects this state's diversity . . . . It is not intended that formulas or specific ratios be applied for this purpose. " 

We have been down this path before.

Apart from the byzantine intricacies of the applicant selection process, the criteria that the Citizen's Redistricting Commission will apply will not necessarily result in the avoidance of Hispanic or non-white vote dilution.  Vote dilution occurs when the voting strength of a racial and ethnic minority community which is also a numerical minority is discounted due to the impact of racially polarized voting - where different racial and ethnic groups vote differently.

Ostensibly to avoid voter dilution of communities of color, the governing statutory language refers to the federal Voting Rights Act.  While the reference to the Act is laudable, a recent decision by the U.S. Supreme Court has severely curtailed the protections it affords.

As a result, the federal Voting Rights Act does not protect areas where it is not possible to create a hypothetical election district that is at least a 50% minority district.  In California, federal courts have defined such a 50% minority district as one consisting of a 50% Latino citizen voting age population. 

Accordingly the only areas protected by the federal Voting Rights Act will be those areas containing large concentrations of Latino citizen voting age persons.  But, what about other areas where Latinos do not have sufficient numbers to create a majority Latino eligible voter district?  These communities are not protected by the federal Voting Rights Act unless you can prove an intent to discriminate against Latino voting strength.  Proving such intent is very difficult and for all practical purposes does not offer a realistic legal avenue for challenging a redistricting plan that fragments Latino voting strength.

Since these Latino communities are not specifically protected by the discriminatory effect prong of the federal Voting Rights Act, the Commission will not have any legal restraints preventing the further fragmentation of such Latino communities into two or more legislative districts.

There is statutory language included within Proposition 11 regarding the protection of communities of interest that could conceivably be interpreted to protect such Latino communities.  However this approach is not reassuring since there is no existing federal case law that would protect such a Latino community solely on the grounds of protecting a community of interest.

In summary, for these and other reasons the unfolding experiment in California is fermenting in a way that does not instill much confidence that the Commission's decision-makers will be reflective of the State's diversity and that they will apply legal standards that will provide protection to all Latino communities.

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