August 1, 2014

California insists “race” is a qualification for public office

By California insists “race” is a qualification for public office

California voters hoping to serve on the next Citizens Redistricting Commission better make sure they’re a member of the right “race” when they apply.  Forget the Fourteenth Amendment.  A California statute requires that members of the Commission be chosen partly on their race, and one court says that’s okay.  So attorneys from PLF’s Equality Under the Law Project were at the California Court of Appeal this past Monday arguing that the State’s race-based commissioner selection process is unconstitutional.  The case is Connerly v. State of California.

Under California Government Code Section 8252, the first eight members of the Citizens Redistricting Commission are appointed by random selection from a pool of sixty or so applicants. These eight appointees in turn select the final six Commission members according to the requirements in Section 8252(g).  What makes one qualified to serve on the Commission?  Being the right race for one thing.  Section 8252(g) requires that members be chosen to ensure the Commission reflects the State’s racial diversity.  So when your application is being considered, you better hope your race is needed.

Well before the selection of the last eight Commissioners, state regulations require state employees to begin culling the applicant pool on the basis of race.  This process begins when the applicant pool is narrowed to 120 individuals, and again when the pool is narrowed to 60 individuals.  How does the State know the race of each applicant?  Easy.  The State issued regulations requiring each applicant to provide their “race, ethnicity, gender, age, date of birth, and household income” on an initial application form.  That’s not for record keeping, that’s for screening and selection.

An individual’s race can never be a qualification for public office.  In Turner v. Fouche, for instance, the Supreme Court noted that while there is no right to be appointed to public office, individuals “have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.”  In Anderson v. Martin, the Court affirmed that race has “no relevance” to a person’s “qualifications for office.”

The Supreme Court declared in Hill v State of Texas that “[e]qual protection of the laws is something more than an abstract right.  It is a command which the state must respect.”  Somehow, California never got the message.  But that might change.  The court of appeal is expected to issue its decision within 90 days.

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