HomeMy WebLinkAboutItem 3b - Legal Challenge Regarding the Constitutionality of the California Voting Rights Act
DATE: October 17, 2017 TO: Honorable Mayor and City Council
FROM: Stephen P. Deitsch, City Attorney
SUBJECT: REPORT, DISCUSSION, AND DIRECTION REGARDING HIGGINSON V. BECERRA; AND THE CITY OF POWAY CONCERNING THE
CONSTITUTIONALITY OF THE CALIFORNIA VOTING RIGHTS ACT
Recommendation: Provide Direction
SUMMARY
At the October 11, 2017, City Council meeting, Mayor Amundson requested that the
City Manager schedule a discussion at the regularly scheduled City Council meeting on
October 17, 2017 for the City Attorney to provide recommendations regarding joining a
legal challenge to the California Voting Rights Act (“CVRA”) in federal court. Council Member Verlato and Council Member Beck joined this request.
On October 4, 2017, a lawsuit filed was filed in United States District Court in California
challenging the constitutionality of the California Voting Rights Act. The action is
captioned, “Higginson vs. Becerra; and City of Poway.” In this action, Plaintiff, a citizen of the City of Poway, alleges that due to the application of CVRA to the City of Poway,
the City had little choice but to transition from at-large municipal elections to by-district
elections based on race as a result of threatened CVRA litigation.
Defendents’ answer to the complaint or, in-lieu thereof, of a motion to dismiss is normally due to be filed 21 days after service of the complaint. It is possible that Plaintiff
will seek a preliminary injunction against enforcement of the CVRA to require
implementation of by-district elections in Poway. In any event, it is anticipated that as
the case progresses, Plaintiff and Defendents be required to file briefs with the court in
support of their positions. Therefore, it is recommended that the City Council:
1. Consider lending the City of Arcadia’s name to future amicus briefs pending
review of the City Attorney;
2. Defer a final determination on funding pending further review from the City Attorney.
Legal Challenge Regarding the Constitutionality of the California Voting Rights Act October 17, 2017
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DISCUSSION
The City of Arcadia is in the process of considering adoption of an Ordinance
transitioning from an at-large to a by-district election of City Council Members based on a threat of litigation under the CVRA, much like the City of Poway. Many cities, school districts, and other governmental entities in California are currently facing or have faced
the consideration of such a transition due to threatened litigation under the CVRA.
Legal counsel for Plaintiff has generally indicated to the City Attorney that Plaintiff would welcome support from cities and other governmental entities in furtherance of their legal contention that the CVRA is unconstitutional on its face or as applied. They have
suggested that such support might be in the form of lending the name of the City of
Arcadia, for example, to an amicus brief in support Plaintiff’s future briefs, and/or
contribution of some funding for such preparation. Any such amicus briefs are expected to be prepared by legal counsel selected by Plaintiff’s attorneys.
It is presently unclear how much of a financial contribution is sought. It is also unclear
whether other cities and governmental entities will join this effort, and how many.
The City Attorney recommends that the City Council consider lending the City of Arcadia’s name to future amicus briefs on condition that the City Attorney has first
reviewed such briefs and determined that it would reasonable and appropriate to
support the particular brief as drafted. The City Attorney further recommends that the
City Council defer a final determination of any possible contribution of funds for this effort pending receipt of additional information about the budget for the preparation of amicus briefs and the number of other public entity participants; however, the City
Council at this time may wish to express its intention to generally support this effort and
consider future funding.
ENVIRONMENTAL REVIEW
The proposed action does not constitute a project under the California Environmental
Quality Act (“CEQA”), and it can be seen with certainty that it will have no impact on the
environment. Thus, this matter is exempt under CEQA. FISCAL IMPACT
There is no fiscal impact associated with this discussion. If the City Council engages in
this action, additional legal fees may be incurred in support of this litigation.
Legal Challenge Regarding the Constitutionality of the California Voting Rights Act October 17, 2017
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RECOMMENDATION
It is recommended that the City Council:
1. Consider lending the City of Arcadia’s name to future amicus briefs pending review of the City Attorney;
2. Defer a final determination on funding pending further review from the City
Attorney.
Attachment: Complaint “Higginson v. Becerra; and City of Poway”
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Bryan K. Weir, CA Bar # 310964
William S. Consovoy, VA Bar # 47704 (pro hac vice to be filed)
Thomas R. McCarthy, VA Bar # 47154 (pro hac vice to be filed)
J. Michael Connolly, VA Bar # 77632 (pro hac vice to be filed)
CONSOVOY MCCARTHY PARK PLLC
3301 Wilson Boulevard
Suite 700
Arlington, VA 22201
(703) 243-9423
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DON HIGGINSON,
Plaintiff,
v.
XAVIER BECERRA, in his official
capacity as ATTORNEY GENERAL OF
CALIFORNIA; and CITY OF POWAY,
CALIFORNIA,
Defendants.
Case No.: _________
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
Plaintiff Don Higginson brings this action against Defendants Attorney General
Xavier Becerra and the City of Poway, California to have the California Voting Rights Act
and Map 133 declared unconstitutional and to enjoin their enforcement. Plaintiff alleges as
follows:
INTRODUCTION
1. The Equal Protection Clause of the Fourteenth Amendment “prevents a State,
in the absence of ‘sufficient justification,’ from ‘separating its citizens into different voting
districts on the basis of race.’” Cooper v. Harris, 137 S. Ct. 1455, 1463 (2017) (citation
omitted). “[I]f racial considerations predominated over others, the design of the district
must withstand strict scrutiny.” Id. at 1464.
'17CV2032 JLBWQH
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2. The Supreme Court has assumed—but not yet decided—that complying with
Section 2 of the Voting Rights Act of 1965 (“VRA”), which has been interpreted to protect
minorities against vote dilution, could be a compelling interest that upholds a districting
plan. Id. But the Court also has emphasized that Section 2 is in obvious tension with the
Fourteenth Amendment because it, by definition, makes race the predominant factor in
districting decisions.
3. The Supreme Court issued a series of decisions, beginning with Thornburg v.
Gingles, 478 U.S. 30 (1986), in an attempt to address this concern. Ultimately, the Court
held that an at-large voting system will violate Section 2 only if a minority group proves
both that it can form a compact single-member district and that voting is racially polarized.
These requirements, the Court has warned, ensure that Section 2 is an anti-discrimination
provision, and not an unconstitutional mandate to maximize electoral power on the basis
of race.
4. The California Legislature did not heed the Supreme Court’s warning.
Instead, California passed its own voting rights act—the California Voting Rights Act of
2001 (“CVRA”)—to override the constraints the Supreme Court has imposed in an attempt
to save Section 2 from unconstitutionality. Under the CVRA, local governments must
abandon at-large voting systems if racially polarized voting exists—regardless of whether
the minority group is sufficiently large and geographically compact to constitute a majority
in a single-member district.
5. Accordingly, the CVRA flagrantly violates the Fourteenth Amendment. Its
“race-based sorting of voters” does not serve a “compelling interest” nor is it “narrowly
tailored.” Cooper, 137 S. Ct. at 1464.
6. The City of Poway is one of many California localities that for decades used
at-large voting to elect its City Council. Recently, however, the City received a demand
letter alleging that racially polarized voting existed in the City, and that the City therefore
would be sued under the CVRA—and exposed to legal liability and millions of dollars of
fees—unless it switched to by-district elections. Given the prospect of liability, the City
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complied with the CVRA and abandoned at-large voting. On October 3, 2017, the City
enacted four single-member districts solely as a consequence of the CVRA. City elections
using these new districts will be held in 2018.
7. Don Higginson is a City resident and a registered voter. Because of the
redistricting that the CVRA has imposed on the City, Mr. Higginson will now reside in and
vote in District 2. The creation of that district, like all of the City’s new districts, is traceable
to the CVRA’s requirement that the City engage in racial gerrymandering. Mr. Higginson
thus has brought this action to vindicate his constitutional rights under the Fourteenth
Amendment.
JURISDICTION AND VENUE
8. This Court has jurisdiction to hear and decide Plaintiff’s claim brought under
the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. §§ 1983
and 1988, and 28 U.S.C. §§ 1331, 1343(a)(3), and 1357. Declaratory relief is authorized
by 28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57.
9. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
PARTIES
10. Plaintiff Don Higginson is a City resident and a registered voter. Because the
California Voting Rights Act has forced the City to abandon at-large elections, he will now
reside in and vote in District 2. Mr. Higginson alleges that District 2, like all of the City’s
districts, is racially gerrymandered as a result of the redistricting the California Voting
Rights Act has imposed on the City.
11. Defendant Xavier Becerra is the Attorney General of California. Defendant
Becerra is charged by Article V, Section 13 of the California Constitution with the duty to
see that the laws of California are uniformly and adequately enforced. He is sued in his
official capacity.
12. Defendant City of Poway is a California general law city and a municipal
corporation organized and existing under and by virtue of the laws of the State of
California. The City is subject to the California Voting Rights Act. As a direct result of that
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statute, the City has abandoned its at-large voting system and switched to by-district
elections that are the product of racial gerrymandering.
FACTUAL ALLEGATIONS
A. The Fourteenth Amendment
13. The Fourteenth Amendment prohibits “racial gerrymanders in legislative
districting plans.” Cooper, 137 S. Ct. at 1463. Absent a “sufficient justification,” the
Fourteenth Amendment forbids a State or political subdivision from “‘separating its
citizens into different voting districts on the basis of race.’” Bethune-Hill v. Virginia State
Bd. of Elections, 137 S. Ct. 788, 797 (2017) (quoting Miller v. Johnson, 515 U.S. 900, 911
(1995)).
14. Under controlling precedent, “strict scrutiny applies when race is the
‘predominant’ consideration in drawing the district lines such that ‘the legislature
subordinates traditional race-neutral districting principles ... to racial considerations.’”
Shaw v. Hunt, 517 U.S. 899, 907 (1996) (quoting Miller, 515 U.S. at 916). Once strict
scrutiny is triggered, the burden “shifts to the State to prove that its race-based sorting of
voters serves a ‘compelling interest’ and is ‘narrowly tailored’ to that end.” Cooper, 137
S. Ct. at 1464.
B. Section 2 of the Voting Rights Act
15. Congress passed the Voting Rights Act of 1965 (“VRA”) to enforce the right
to vote free from racial discrimination. Section 2 thus bars practices “imposed or applied
... in a manner which results in a denial or abridgment” of the right to vote. 52 U.S.C. §
10301(a) (formerly 42 U.S.C. § 1973). A violation of Section 2 “is established if, based on
the totality of circumstances, it is shown that the political processes leading to nomination
or election in the State or political subdivision are not equally open to participation by
members of a class of citizens … in that its members have less opportunity than other
members of the electorate to participate in the political process and to elect representatives
of their choice.” Id. § 10301(b).
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16. Section 2 has been interpreted to protect minorities against vote dilution, and
the Supreme Court has held that a municipality’s use of multimember and at-large districts
can, in some circumstances, “dilute[] minority voting strength by submerging [minority]
voters into the white majority, denying them an opportunity to elect a candidate of their
choice.” Bartlett v. Strickland, 556 U.S. 1, 11 (2009). At the same time, the Supreme Court
has tried to interpret Section 2 in a way that might keep it from violating the Fourteenth
Amendment’s ban on racial gerrymandering.
17. To that end, there are “three ‘necessary preconditions’ for a claim that the use
of multimember [or at-large] districts constitute[s] actionable vote dilution under § 2:
(1) The minority group must be ‘sufficiently large and geographically compact to constitute
a majority in a single-member district,’ (2) the minority group must be ‘politically
cohesive,’ and (3) the majority must vote ‘sufficiently as a bloc to enable it ... usually to
defeat the minority’s preferred candidate.’” Id. (quoting Gingles, 478 U.S. at 50-51). “In a
§ 2 case,” therefore, “only when a party has established the Gingles requirements does a
court proceed to analyze whether a violation has occurred based on the totality of the
circumstances.” Id. at 11-12.
18. The Supreme Court has repeatedly emphasized the importance of the first
Gingles factor—i.e., that the minority group be sufficiently large and geographically
compact to constitute a majority in a single-member district—in ensuring that Section 2
enforces the right to vote instead of requiring racial gerrymandering. The requirement is
“needed to establish that the minority has the potential to elect a representative of its own
choice in some single-member district.” Growe v. Emison, 507 U.S. 25, 40 (1993).
“Without such a showing, ‘there neither has been a wrong nor can be a remedy.’” Bartlett,
556 U.S. at 15 (quoting Growe, 507 U.S. at 41). Absent this requirement, in other words,
Section 2 would entitle “minority groups to the maximum possible voting strength,” id. at
16, which “causes its own dangers, and they are not to be courted,” Johnson v. De Grandy,
512 U.S. 997, 1016 (1994).
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19. The compactness requirement thus has been indispensable—at least to date—
in saving Section 2 from constitutional doubt. Section 2 undeniably makes race the
predominant factor—even with the compactness precondition in place—when it requires
creation of majority-minority districts. See Shaw, 517 U.S. at 906-08. The Supreme Court
has “assumed,” but not held, “that one compelling interest is complying with operative
provisions of the Voting Rights Act of 1965.” Cooper, 137 S. Ct. at 1464. But compliance
with Section 2 is assumed to be a compelling interest only because it is understood to
remedy racial discrimination in voting. Bartlett, 556 U.S. at 10. There is no discrimination
to remedy if the minority population is not sufficiently “compact” such that it would have
“the potential to elect a representative of its own choice in some single-member district.”
Growe, 507 U.S. at 40.
20. Furthermore, the use of race in districting must be narrowly tailored even
assuming the existence of a compelling interest. Cooper, 137 S. Ct. at 1464. Section 2
could never meet that requirement in the absence of the compactness precondition. “Racial
gerrymandering, even for remedial purposes, may balkanize us into competing racial
factions; it threatens to carry us further from the goal of a political system in which race no
longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to
which the Nation continues to aspire.” Shaw v. Reno, 509 U.S. 630, 657 (1993).
Eliminating the compactness requirement, in other words, would “unnecessarily infuse
race into virtually every redistricting, raising serious constitutional questions.” Bartlett,
556 U.S. at 21 (citation omitted).
C. The California Voting Rights Act
21. Over time, the California Legislature became dissatisfied with the Supreme
Court’s interpretation of Section 2 and wanted to “provide a broader basis for relief from
vote dilution than available under the [VRA].” Jauregui v. City of Palmdale, 172 Cal. Rptr.
3d 333, 350 (Cal. Ct. App. 2014). The Legislature believed that the Court’s “[r]estrictive
interpretations” of Section 2, which were adopted to try to avoid racial-gerrymandering
concerns, were simply wrong. Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976
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(2001-2002 Reg. Sess.) as amended Apr. 9. 2002, p.2. Flouting the Supreme Court, the
Legislature concluded that “geographical compactness would not appear to be an important
factor in assessing whether the voting rights of a minority group have been diluted or
abridged by an at-large election system.” Id. at 3.
22. The California Voting Rights Act of 2001 (“CVRA”) was enacted to “avoid
that problem.” Id. at 2. The CVRA thus was designed to “make it easier to successfully
challenge at-large districts” by eliminating the Gingles precondition that “a minority
community be sufficiently concentrated geographically to create a district in which the
minority community could elect its own candidate.” Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Sen. Bill No. 976 (2001–2002 Reg. Sess.) as amended
Jun. 11, 2002, p.4. The CVRA thus overrides the “[r]estrictive interpretations given to the
[VRA]” by allowing a plaintiff to establish “[vote] dilution or abridgment of minority
voting rights” merely “by showing the [other] two [Gingles] requirements.” Assem. Com.
on Judiciary, supra, at 2-3.
23. To that end, the CVRA provides that “[a]n at-large method of election may
not be imposed or applied in a manner that impairs the ability of a protected class to elect
candidates of its choice or its ability to influence the outcome of an election ... as a result
of the dilution,” Cal. Elec. Code § 14027, and that “[a] violation of Section 14027 is
established if it is shown that racially polarized voting occurs in elections for members of
the governing body of the political subdivision or in elections incorporating other electoral
choices by the voters of the political subdivision,” Cal. Elec. Code § 14028(a).
24. No other showing is needed to establish a CVRA violation. “The fact that
members of a protected class are not geographically compact or concentrated may not
preclude a finding of racially polarized voting, or a violation of Section 14027 and this
section, but may be a factor in determining an appropriate remedy.” Cal. Elec. Code §
14028(c).
25. Moreover, “[p]roof of an intent on the part of the voters or elected officials to
discriminate against a protected class is not required.” Cal. Elec. Code § 14028(d). Factors
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“such as the history of discrimination ... are probative, but not necessary factors to establish
a violation of Section 14027 and this section.” Id. § 14028(e).
26. Once there is a finding of racially polarized voting, the political subdivision
must abandon its at-large system. “Upon a finding of a violation of Section 14027 and
Section 14028, the court shall implement appropriate remedies, including the imposition
of district-based elections, that are tailored to remedy the violation.” Cal. Elec. Code §
14029.
27. And, no matter the remedy, the political subdivision will be liable for
attorneys’ fees and costs because it will have been found liable under the CVRA. “In any
action to enforce Section 14027 and Section 14028, the court shall allow the prevailing
plaintiff party, other than the state or political subdivision thereof, a reasonable attorney’s
fee, ... and litigation expenses including, but not limited to, expert witness fees and
expenses as part of the costs. Prevailing defendant parties shall not recover any costs,
unless the court finds the action to be frivolous, unreasonable, or without foundation.” Cal.
Elec. Code § 14030.
28. In 2016, the election code was amended to afford a political subdivision in
violation of the CVRA a safe harbor from the expense of litigation. “Before commencing
an action to enforce Sections 14027 and 14028, a prospective plaintiff shall send by
certified mail a written notice to the clerk of the political subdivision against which the
action would be brought asserting that the political subdivision’s method of conducting
elections may violate the California Voting Rights Act.” Cal. Elec. Code § 10010(e)(1).
“A prospective plaintiff shall not commence an action to enforce Sections 14027 and 14028
within 45 days of the political subdivision’s receipt of the written notice described in
paragraph (1).” Id. § 10010(e)(2).
29. The political subdivision then must decide whether it will comply with the
demand or be sued under the CVRA. “Before receiving a written notice described in
paragraph (1), or within 45 days of receipt of a notice, a political subdivision may pass a
resolution outlining its intention to transition from at-large to district-based elections,
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specific steps it will undertake to facilitate this transition, and an estimated time frame for
doing so.” Cal. Elec. Code § 10010(e)(3)(A). “If a political subdivision passes a resolution
pursuant to subparagraph (A), a prospective plaintiff shall not commence an action to
enforce Sections 14027 and 14028 within 90 days of the resolution’s passage.” Id. §
10010(e)(3)(B).
30. In sum, the political subdivision can limit its legal exposure under the CVRA
only by quickly agreeing to abandon its at-large system and begin the process of
transitioning to by-district elections. Only if the political subdivision capitulates, in other
words, will the complaining party have his or her fees “capped at $30,000.” Cal. Elec. Code
§ 10010(f)(3).
D. The Shenkman Demand Letter
31. Like many California localities, the City of Poway for decades used an at-
large voting system to elect its City Council.
32. On June 7, 2017, the City received a certified letter from an attorney, Kevin
Shenkman, asserting that the City’s at-large system violates the CVRA.
33. In particular, Mr. Shenkman asserted that “voting within Poway is racially
polarized, resulting in minority vote dilution, and therefore Poway’s at-large elections
violate the [CVRA].” He added that the CVRA is “different” from the VRA “in several
key respects, as the [California] Legislature sought to remedy what it considered restrictive
interpretations given to the federal act.” “The California Legislature dispensed with the
requirement in Gingles that a minority group demonstrate that it is sufficiently large and
geographically compact to constitute a ‘majority-minority district.’ Rather, the CVRA
requires only that a plaintiff show the existence of racially polarized voting to establish that
an at-large method of election violates the CVRA, not the desirability of any particular
remedy.”
34. According to Mr. Shenkman, “Poway’s at-large system dilutes the ability of
Latinos (a ‘protected class’) to elect candidates of their choice or otherwise influence the
outcome of Poway’s council elections.” Therefore, unless the City “voluntarily change[s]
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its at-large system of electing council members ... [he] will be forced to seek judicial relief.”
He reminded the City that he had sued “the City of Palmdale for violating the CVRA. After
an eight-day trial, we prevailed. After spending millions of dollars, a district-based remedy
was ultimately imposed upon the Palmdale city council, with districts that combine all
incumbents into one of the four districts.” Mr. Shenkman gave the City until July 21, 2017
to notify him whether it would come into compliance with the CVRA.
E. The City’s Response
35. On June 20, 2017, in response to the Shenkman letter, the City Council held
a closed session to discuss the threatened CVRA litigation. As reported out by the City
Attorney after the closed session, the City Council provided direction to staff to prepare a
resolution of intention for establishing and implementing by-district elections for the City
Council members to be presented for consideration at the July 18, 2017 City Council
meeting.
36. In recommending the adoption of the resolution ahead of the July 18 meeting,
the City Attorney explained that “the risks and costs associated with protracted CVRA
litigation—particularly in light of results in all other cities that have fought to retain at-
large voting—cannot be ignored. The public interest may ultimately be better served by a
by-district electoral system if converting to that system avoids significant attorneys’ fees
and cost award.”
37. At the City Council meeting on July 18, an outside attorney the City hired to
advise it on the Shenkman letter outlined the difficulty in defending CVRA lawsuits. He
provided examples of prior attorney’s fees awards under the CVRA and explained that
“[t]he state statutory scheme when it was adopted by the state legislature effectively
removed burdens of proof that exist under the federal Voting Rights Act. And what that
effectively means is that it is virtually impossible for governmental agencies to defend
against lawsuits brought under the CVRA. And that’s in fact why you see cities throughout
the State converting … in the face of these demand letters.”
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38. Three citizens spoke during the public discussion portion of the meeting. The
first speaker, a long-time advocate for by-district elections, said “I thought we’d have to
go through the initiative process to make it happen. It’s amazing what … one letter from a
lawyer can do.”
39. The second speaker supported change to the electoral process in the City more
generally but was not an advocate for by-district elections necessarily. He stated: “I think
what you are doing as far as changing to districts is not [the] optimum but [] certainly will
get rid of the problem of getting the lawsuit.”
40. The third speaker opposed a change to by-district elections but acknowledged
to the City Council that, due to the threatened lawsuit, “I understand you don’t really have
a choice here.”
41. Each member of the City Council then expressed his strong disapproval of the
changes that the CVRA was forcing the City to make.
42. City councilmember Jim Cunningham explained that “the [safe-harbor
provision] is truly the shield … we are using to avoid attorney’s fees, and costs, and
protracted litigation.” He then specifically sought advice from the outside attorney on
whether they were utilizing that provision correctly to avoid those burdens.
43. City councilmember Dave Grosch explained that he supported by-district
elections eight years ago. But his experience as an at-large councilmember where he serves
and supports the entire community—and not just one district—convinced him that at-large
elections were better. In reference to Mr. Schenkman’s letter, he added, “I really hate that
the City is … being told to do this by someone who doesn’t live in Poway” and made clear
that the letter was the only reason the City was changing to by-district elections.
44. City councilmember John Mullin asked the outside attorney, “If at some point
in time, … somebody does succeed in challenging any or all of the portions of the act,
would we … then have the option to revisit the decision to use district elections?” The
attorney explained the City would be able to do so. Councilmember Mullin concluded:
“We’ve gone through denial, and we’ve gone through anger, and now we’re into
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acceptance. So, to those of you in the audience who think that we should be fighting this,
we concur, we were there awhile back as well. I have no illusions that this will lead to
better government for our city. I’m pretty proud of the job we do as we are now
constituted… . But having said all of that, again we have a gun to our heads and we have
no choice.”
45. Deputy Mayor Barry Leonard said, “I get it. I hate it but I get it.” He explained
his view that “we respond to everybody in the City. We don’t pick certain people in certain
neighborhoods and say we’ll treat them any differently. There is no evidence of that
whatsoever. So, I feel like we’re already being found guilty of something and we don’t
have a chance to prove our innocence. It’s just the deck is stacked. So, rather than spend a
million dollars of the taxpayers’ money, we roll over to these bullies.”
46. Mayor Steve Vaus concluded, “I’ll just echo that this council does a
remarkable job [with at-large elections]. … But we’ve got to do what we’ve got to do. And
job one is to protect the treasure of our constituents. And it’s their money we’d be putting
at risk [with litigation] and none of us are willing to do that.”
47. The City Council adopted Resolution No. 17-046 setting forth its intention to
transition from at-large to by-district elections, pursuant to Elections Code section
10010(e)(3)(A). The Resolution stated that after “the City [had] received a letter
threatening action under the California Voting Rights Act,” it had “determined that it is in
the best interest of the City to move from its current at-large electoral system to a by-district
election for members of the City Council, in furtherance of the purposes of California
Voting Rights Act.”
48. On August 1, 2017, August 8, 2017, and August 18, 2017, the Council held
meetings where it received public input on drawing new districts, consulted a demographer
on how to draw new districts, and evaluated potential maps for the new districts.
49. On August 31, 2017, the Council voted 5-0 to proceed with Map 133, an
election plan that divides the City into four districts.
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50. On September 19, 2017, the Council introduced an ordinance for first reading
and public comment that enacted Plan 133. For his part, councilmember Mullin reiterated
his view that the City “went down this path with the full recognition that this was our only
reasonable option. Never did I, nor do I now, believe that this will lead to better governance
for our city. … I support the [proposed ordinance] because of a lack of choice and not
because I think it’s best for the City. … I’m still begrudgingly doing this.”
51. On October 3, 2017, the Council adopted the ordinance enacting Map 133. In
voting for the ordinance, councilmember Mullin stated, “I don’t want my affirmative vote
on this item to be construed in any way as my support for this notion for district elections.
… I will support the motion because we have no choice not because I think district elections
are what’s best for the city.”
52. The City would not have switched from at-large elections to single-districts
elections but for the prospect of liability under the CVRA.
CAUSE OF ACTION
42 U.S.C. §§ 1983, 1988
(Violation of the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution)
53. Plaintiff realleges paragraphs 1 through 52 as if fully stated herein.
54. Section 1 of the Fourteenth Amendment to the United States Constitution
provides in relevant part: “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
55. The Equal Protection Clause prohibits the use of race as the predominant
factor in drawing electoral districts unless the State or political subdivision has a
compelling interest in doing so and the use of race is narrowly tailored to that interest.
56. The CVRA makes race the predominant factor in drawing electoral districts.
Indeed, it makes race the only factor given that a political subdivision, such as the City,
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must abandon its at-large system based on the existence of racially polarized voting and
nothing more.
57. California does not have a compelling interest in requiring any political
subdivision, including the City, to abandon its at-large system based on the existence of
racially polarized voting and nothing more. The Supreme Court has assumed that there is
a compelling interest in ensuring that minority voters are not denied the ability to form a
compact district in which they will have the opportunity to elect a candidate of their choice.
That is not the interest the CVRA advances. The CVRA seeks to maximize minority voting
strength.
58. The CVRA also is not narrowly tailored to ensure that minority voters do not
have their votes diluted because, among other reasons, it overrides the compactness
precondition of Section 2 of the VRA. The California Legislature, in enacting the CVRA,
thus lacked a strong basis in evidence to believe that it was necessary to override Section
2’s compactness requirement in order to protect minorities from vote dilution.
59. As a consequence, the CVRA violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
60. Plaintiff has no adequate remedy at law other than the judicial relief sought
here. The failure to enjoin the CVRA will irreparably harm Plaintiff by violating his
constitutional rights.
COSTS AND ATTORNEYS’ FEES
61. Pursuant to 42 U.S.C. § 1988, Plaintiff seeks an award of their costs, including
reasonable attorneys’ fees, incurred in the litigation of this case.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that this Court:
62. Declare that the California Voting Rights Act requires California political
subdivisions, such as the City, to engage in racial gerrymandering in violation
of the Equal Protection Clause of the Fourteenth Amendment.
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63. Permanently enjoin Defendant Becerra from enforcing or giving any effect to
the California Voting Rights Act.
64. Declare Map 133 in violation of the Equal Protection Clause of the Fourteenth
Amendment.
65. Permanently enjoin Defendant City of Poway from using Map 133 in any
future election.
Grant such other or further relief the Court deems to be appropriate, including but
not limited to an award of Plaintiff’s attorneys’ fees and reasonable costs.
Respectfully submitted,
/s/ Bryan K. Weir
Bryan K. Weir, CA Bar # 310964
William S. Consovoy, VA Bar # 47704 (pro hac vice to be filed)
Thomas R. McCarthy, VA Bar # 47154 (pro hac vice to be filed)
J. Michael Connolly, VA Bar # 77632 (pro hac vice to be filed)
CONSOVOY MCCARTHY PARK PLLC
3301 Wilson Boulevard
Suite 700
Arlington, VA 22201
(703) 243-9423
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