[EL] Palmdale California VRA case

[Fredric Woocher]

I'll add one more interesting legal issue that is likely to be raised in the Palmdale litigation on appeal.  Under the California Constitution's "home rule" provision, charter cities like Palmdale have specifically been granted the authority to manage certain of their own affairs without interference from the state Legislature.  Among the four "core" areas of such "municipal affairs" are the "conduct of city elections," in which the city is granted "plenary authority" under the state Constitution "to provide . . . the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed . . . ."  (Cal. Const., art. XI, sec. 5(b).)  Accordingly, although the City's choice to hold at-large elections for its city councilmembers on off-years would be subject to challenge under the federal VRA or on Equal Protection grounds, it is not at all clear that the California VRA - a state statute - can lawfully apply to charter cities under the state Constitution's "home rule" provision.

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Douglas Johnson
Sent: Tuesday, December 03, 2013 10:32 PM
To: 'Rick Hasen'; law-election at uci.edu
Subject: Re: [EL] Palmdale California VRA case

As one might imagine from reading the ruling and remedy order in Palmdale, there are many, many complex issues going on here. As one of the City's experts, I'll save the details for court, but here are just a couple examples of the complexity of this situation: (these are already in the record):

*         My friend Mr. Ely mischaracterizes the Defense view of the racially polarized voting evidence. But he is correct that it is possible to draw a district that is over 50% Latino CVAP - but that's obvious, as the City as a whole is now over 50% Latino CVAP (this is in the record from the remedy hearing, though the 2012 one-year ACS data, which indicated the City was over 49% and that the Latino % of CVAP was continuing to increase 2-3 percent per year, was not until after the original trial testimony).

*         The November election, whose certification the court blocked, elected the City's first African-American Councilmember. At the time the injunction was requested it was known that election was guaranteed to elect either an African-American or a Latino, as two seats were up for election and only one Anglo was running (against a Latino former Councilmember and two African Americans).

*         All of the incumbent Councilmembers (except one who did not run for re-election but who stays in office while the injunction against certification is in place), along with the newly-elected-but-not-yet-certified African American Councilmember, and along with the Latino former Councilmember who lost his effort to rejoin the Council in this recent election, are drawn into a single district (District 2) in the court plan.

*         The Court directs the City to consolidate its elections with statewide November even-year elections, but LA County has recently barred jurisdictions from consolidating<http://articles.latimes.com/2013/apr/30/local/la-me-school-elections-20130501> for the technical reason that the LA County ballot has no more space on its ballot card for any more local elections.

An interactive ArcGIS Online version, in color, of the district plan ordered by the court is available at the link below for anyone interested in a version easier to read than the black & white map in the ruling. The large unshaded areas in the middle are unincorporated county islands.
http://bit.ly/1izbGFG
(If you use this map for professional or academic purposes, please attribute it to National Demographics Corporation).

This case is likely to remain interesting as it winds through the judicial process.

-          Doug

Douglas Johnson, President
National Demographics Corporation
djohnson at NDCresearch.com<mailto:djohnson at NDCresearch.com>
310-200-2058



From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, December 3, 2013 9:27 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 12/4/13

More on Palmdale<http://electionlawblog.org/?p=57139>
Posted on December 3, 2013 9:11 pm<http://electionlawblog.org/?p=57139> by Rick Hasen<http://electionlawblog.org/?author=3>

Plaintiffs' expert in the Palmdale case (see earlier post<http://electionlawblog.org/?p=57111>), David Ely, sends along these thoughts via email:

1. Judge did not say that incumbency can never be a consideration, he said that it cannot be used to justify a plan that otherwise violates traditional redistricting criteria and is designed to maintain the existing power structure.  He quotes my characterization of their plan as an egregious incumbent gerrymander, and notes that it would work against remedying the violation. Going from an at large system found in violation to a district system is always going to need extra suspicion of incumbency protection. Since the incumbents were elected at large there are no issues of keeping officials with the constituents who elected them, as any district will do that.

2. While the CVRA standards may be much easier to meet than federal VRA standards, the case against Palmdale meets federal standards and could easily have been a Summary Judgment case in Federal court.  Defendants' expert agreed that it was possible to draw at least one 50% Latino CVAP district, and that historical elections have been characterized by racially polarized voting, and that minority candidates of choice in city council elections have only won when they were Anglo choice as well. Defense argument was based on idea that Democratic candidates winning locally in partisan statewide contests, supported by Latinos and not by Anglos, meant that Latinos could elect candidates of choice. In addition Palmdale has an extensive history of racial conflict and official discrimination.

3.The Modesto case which the Supreme Court refused to hear raised the equal protection argument in a situation where a Section 2 case might well have failed.  There could be a case which raises the argument more compellingly, but that would require a judge to find a violation and order a remedy that could be said to violate Equal Protection as applied.  This case raises none of those issues, and I doubt that California Courts will apply the CVRA in a way that does.

In Fascinating Case, Judge Orders New Elections in Palmdale under CA Voting Rights Act<http://electionlawblog.org/?p=57111>
Posted on December 3, 2013 10:11 am<http://electionlawblog.org/?p=57111> by Rick Hasen<http://electionlawblog.org/?author=3>

A Los Angeles County superior court judge has issued this tentative remedial order <http://electionlawblog.org/wp-content/uploads/palmdale-order.pdf> (following this ruling on the merits<http://electionlawblog.org/wp-content/uploads/jauregui-final-statement-of-decision.pdf>) that the City of Palmdale's at large elections violate the California Voting Rights Act<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=14001-15000&file=14025-14032>. I am about to talk about this on KPCC.  (Update: You should be able to listen to the archived interview a bit later here<http://www.scpr.org/programs/take-two/2013/12/03/34920/judge-rules-that-palmdale-must-change-city-electio/>.)

Here is the Daily News story<http://www.dailynews.com/government-and-politics/20131202/judge-kicks-out-palmdale-city-council-orders-special-election>; here is the one in the LA Times<http://www.latimes.com/local/la-me-palmdale-elect-20131203,0,198764.story#axzz2mLXlh42k>.

There are many fascinating issues, assuming this tentative ruling becomes final.  Can the judge throw out the results of the recent election as a CVRA remedy? (The judge tried to block the election, but a divided appellate court reversed<http://articles.latimes.com/2013/oct/16/local/la-me-pc-palmdale-election-20131016>. UPDATE: Kevin Shenkman clarifies: The appellate court did not reverse any ruling by Judge Mooney. 2 of 3 appellate judges interpreted Judge Mooney's order as prohibiting only the certification of the election, and on that basis denied Defendant's petition for writ of supersedeas. The election has not been, and will not be, certified, absent further action by a court.)

The judge said incumbency could not be a factor to be considered in drawing the lines.  For this reason, and others, the judge rejected the City's proposed plan. Will that stand up on appeal?  More broadly, the CVRA gives broad remedial powers to the judges in these cases.  How should they be exercised? (Neither party in this case, for example, preferred a cumulative voting remedy.)

Finally, and most significantly, the California Voting Rights Act imposes standards which are much easier to meet than the federal voting rights standards.  If someone brought a federal constitutional equal protection challenge against the Act, will it stand?  The Supreme Court a few years ago refused to take a CVRA case, but another case might fare better, especially in a post-Shelby County world.


[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D57111&title=In%20Fascinating%20Case%2C%20Judge%20Orders%20New%20Elections%20in%20Palmdale%20under%20CA%20Voting%20Rights%20Act&description=>
Posted in voting<http://electionlawblog.org/?cat=31>, Voting Rights Act<http://electionlawblog.org/?cat=15>
"Business Groups Eye Expanded Role in Elections"<http://electionlawblog.org/?p=57109>
Posted on December 3, 2013 10:04 am<http://electionlawblog.org/?p=57109> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports<http://online.wsj.com/news/articles/SB10001424052702304579404579234033386430854>.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D57109&title=%E2%80%9CBusiness%20Groups%20Eye%20Expanded%20Role%20in%20Elections%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
"Nagle on Withdrawal As Cure for Campaign Contributions"<http://electionlawblog.org/?p=57107>
Posted on December 3, 2013 10:01 am<http://electionlawblog.org/?p=57107> by Rick Hasen<http://electionlawblog.org/?author=3>

This item<http://www.cityethics.org/content/nagle-withdrawal-cure-campaign-contributions> appears at City Ethics.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D57107&title=%E2%80%9CNagle%20on%20Withdrawal%20As%20Cure%20for%20Campaign%20Contributions%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, conflict of interest laws<http://electionlawblog.org/?cat=20>
"Democrats: Investigate Joe Deters' voting history"<http://electionlawblog.org/?p=57105>
Posted on December 3, 2013 9:57 am<http://electionlawblog.org/?p=57105> by Rick Hasen<http://electionlawblog.org/?author=3>

The Cincinnati Enquirer reports.<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201312022314/NEWS01/312020039>
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D57105&title=%E2%80%9CDemocrats%3A%20Investigate%20Joe%20Deters%E2%80%99%20voting%20history%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
Better Link to Moreland Report on NY Corruption<http://electionlawblog.org/?p=57103>
Posted on December 3, 2013 9:56 am<http://electionlawblog.org/?p=57103> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://publiccorruption.moreland.ny.gov/sites/default/files/moreland_report_final.pdf>.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D57103&title=Better%20Link%20to%20Moreland%20Report%20on%20NY%20Corruption&description=>
Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
Top Recent Downloads in Election Law on SSRN<http://electionlawblog.org/?p=57101>
Posted on December 3, 2013 9:55 am<http://electionlawblog.org/?p=57101> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Election Law & Voting Rights (Topic) [cid:image002.png at 01CEF072.BDB27410] <http://papers.ssrn.com/publicRss/rssManagerInc.cfm?journalId=991929>
October 4, 2013 to December 3, 2013
Rank

Downloads

Paper Title

1

179

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068>
Richard L. Hasen<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>,
University of California, Irvine - School of Law,
Date posted to database: November 13, 2013
Last Revised: November 14, 2013

2

115

Voting Squared: Quadratic Voting in Democratic Politics <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343956>
Eric A. Posner<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=33688>, E. Glen Weyl<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1186331>,
University of Chicago - Law School, University of Chicago,
Date posted to database: October 24, 2013
Last Revised: October 30, 2013

3

97

Disclosure and Corruption <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334454>
Michael D. Gilbert<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1304972>, Benjamin Aiken<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2131329>,
University of Virginia School of Law, University of Virginia - School of Law, Degree Candidate Author,
Date posted to database: October 2, 2013
Last Revised: November 15, 2013

4

93

Section Two Minus Section Five <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749>
Nicholas Stephanopoulos<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=636048>,
University of Chicago Law School,
Date posted to database: October 7, 2013
Last Revised: October 27, 2013

5

82

'Super PACs' and the Role of 'Coordination' in Campaign Finance Law <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334499>
Bradley A. Smith<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=625464>,
Capital University Law School,
Date posted to database: October 2, 2013
Last Revised: October 2, 2013

6

72

The Unbundled Union: Politics Without Collective Bargaining <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2337561>
Benjamin I. Sachs<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=767255>,
Harvard Law School,
Date posted to database: October 9, 2013
Last Revised: November 7, 2013

7

47

Structuring Big Data to Facilitate Democratic Participation in International Law <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346188>
Roslyn Fuller<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2016041>,
National University of Ireland, Maynooth (NUI Maynooth) - Department of Law,
Date posted to database: October 30, 2013
Last Revised: October 30, 2013

8

45

Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2330520>
Yasmin Dawood<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1166954>,
Faculty of Law, University of Toronto,
Date posted to database: September 27, 2013
Last Revised: September 27, 2013

9

35

Shelby County and the End of History <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2337027>
Joel Heller<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1710731>,
Unaffiliated Authors - Independent,
Date posted to database: October 8, 2013
Last Revised: October 8, 2013

10

31

Keynote Address of Prof. Richard L. Hasen Given to the Voting Wars Symposium, March 23, 2013 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2339193>
Richard L. Hasen<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>,
University of California, Irvine - School of Law,
Date posted to database: October 12, 2013
Last Revised: October 12, 2013

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Posted in pedagogy<http://electionlawblog.org/?cat=23>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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