Lisa Moreno v. Citizens Redistricting Commission

Attorney Columbo shared details of some of the handwritten CRC notes (document below):

• Undated notes, seemingly from 2020, refer to a meeting with an association of elected and appointed Latino officials.
• Undated notes indicate “G/D” (Gibson Dunn, a law firm that served as counsel to the 2010 CRC) “recommended Matt (Barretto),” a consultant to the 2010 CRC, perform the RPV analysis for the 2020 CRC, along with a recommendation to “treat confidential” the RPV analysis.
• Notes dated November 10, 2020, reflect the following points of discussion with Justin Levitt, a Loyola law school professor who became a Biden administration Senior Policy Advisor on Voting rights in April 2021:

“Present VA as example – leg drew distr with 50% afr am w/o checking RPV Was a way to covertly pack afr ams under cover of VRA”

“Matt B[arretto] 2010 RPV analysis kept confidential to deprive opposition of targets to criticize.  It remains confidential as long as we want it to be.  Work product vs. Bagley-Keene FOIA.”

• Notes from a November 12, 2020, meeting (“RPV Session”) record determinations that some regional level data should be public to suggest that the “CRC considered such facts” but then candidly admits that the CRC should “keep private” the “scenario analysis for specific districts (hot spots) Keep public things that others can easily replicate.”
• Notes reflect a secret December 4, 2020, meeting discussing the costs of an RPV analysis and how it would be performed.
• An undated memorandum from the VRA subcommittee summarized their work, including meeting and conversing with “VRA experts to help inform our process.”  The memo included recommendations on contracting for outside counsel, hiring an Racially Polarized Voting (RPV) statistician and VRA analyst, noting that local RPV analysis from the 2010 CRC remains confidential, and developing a larger Legal Subcommittee that would meet publicly.
• Notes of a January 21, 2021 meeting with the Black Census and Redistricting Hub, a project of a self-described progressive organization called California Calls, in which commissioner notes record: “probably not any areas to have dense enough pop to build a majority black district;” “look for small isolated black community”; “Dist 37 – on tract . . . try not to isolate in a dissimilar district”; “Happy to present any of BH findings to CRC”; “Data at hand getting analyzed by early April.”
• A March 3, 2021, meeting with two representatives of the Public Policy Institute of California for which the notes refer to “maps” and changes in the overall population as compared to the voting age population, a reference to “decline” and specific geographic areas, a reference to Asian Americans, and that “non-hispanic” is “declining overall.”
• An April 29, 2021, email between several commissioners and Karin MacDonald, the Director of Statewide Database, an organization that maintains information for redistricting within the University of California’s Institute of Government studies, advises how line drawing may work, suggesting a voting age population analysis to identify where minority voters may constitute a majority and then suggests the CRC direct a racially polarized voting (RPV) analysis at those areas. Although the CRC produced Ms. MacDonald’s email, it redacted the email from Commissioner Sadhwani to which Ms. McDonald’s email was responding.  The documents included another email from Ms. Macdonald to Commissioner Yee on the same date that discussed the use of voter age data for redistricting, but Commissioner Yee’s questions, to which this email responds, are not included.
• Notes of a July 8, 2021, CRC VRA Committee meeting discusses Voting Rights Act compliance and a racially polarized voting analysis. For example, it notes that racially polarized voting increases “downballot” with the exception of an election in 1984.  It states: “can use crossover vote to shave down and not pack a district.”
• Notes of a CRC VRA Committee “pre-meeting” on August 30, 2021, reflect another discussion of conducting a forthcoming racially polarized voting (RPV) analysis, and that “SW” (Strumwasser and Woocher, the 2020 CRC outside counsel) “advice is to keep RPV confidential.”
• Notes of an October 17 meeting refer to an RPV analysis and Matt Baretto, a political scientist who provided the RPV analysis to the 2010 CRC, suggesting that the law firm retained by the 2010 CRC had treated him as an expert witness and, therefore, claimed privilege over his work.

Additional notes of other commissioners produced by the CRC reveal a similar pattern of nonpublic meetings, including:

• Notes of a nonpublic January 29, 2021, meeting with Google that included discussion of “geotargeting”; asking “what do you want and when;” and “Misinformation.”
• Notes dated January 29, 2021, regarding a nonpublic communication with the PPIC Water Policy Center.
• February 2, 2021, notes regarding a nonpublic discussion with representatives of Facebook about Facebook promoting the CRC’s online community of interest tool.

Attorney Columbo said the Commission produced Strumwasser & Woocher, LLP’s proposal to serve as the legal representation for the Commission. It stated that it “served as counsel to the California Legislature,” including listing the Legislature among representative clients for “election and political law” matters, and that it had represented the Legislature before the California Supreme Court—most recently in the high profile matter of Howard Jarvis Taxpayers Association v. Padilla (2016).

The Strumwasser & Woocher proposal also said, “Mr. Woocher has represented the California Legislature, through the Legislative Counsel’s office, and the California State Senate on select matters within the past 10 years. Though the proposal’s description of its relationship to the Legislature suggests the Legislature was a past client, the resume of Mr. Woocher appended to the firm’s proposal stated that he currently “Represents California Legislature.”

The firm also “regularly serves as treasurer and legal counsel to various federal, state, and local political committees and candidates for office,” including “several that have been supported by the California Democratic Party,” but downplayed the further fact that Mr. Woocher is the assistant treasurer for such committee clients as “entirely pro forma.”

The named partners of the firm also disclosed that they (including spouses) have contributed more than $2000 each to Democratic candidates, only. Mr. Woocher disclosed that his other clients included “Congressmembers Katie Porter, Tony Cardenas, Lou Correa, and Nanette Barragan, as well as a number of state and local candidates.” The contract contains, at Exhibit D, a boilerplate prohibition against Strumwasser and Woocher sharing its work product for the CRC or communicating about the CRC’s work with an attorney in the firm working on redistricting or the firm’s political action committee, but imposes no similar limits on the firm’s work for, or communications with, the Legislature, legislators, candidates, and PACs that it represents.

Attorneys Dhillon and Columbo reported that the Supreme Court asked the Citizens Redistricting Commission (the government) to preliminarily respond to the petition by Tuesday, December 7, 2021. The Dhillon Law Firm’s reply must be filed before 3:00 p.m. on Friday, December 10, 2021. The Globe will report any decisions.