[EL] Palmdale California VRA case (Fredric Woocher)

Thu Dec 5 12:18:09 PST 2013

"A charter city, however, remains subject to the California Constitution and
would be prohibited from adopting or maintaining a discriminatory electoral
system or electoral practices that violate the equal protection clause or
the right to vote."  

I remain confident that the California Supreme Court will not disagree with
the above sentence.

I doubt that the Federal Courts would find that electing council members by
district, using districts that are well within any definition of traditional
redistricting criteria, and holding those elections together with higher
turnout statewide general elections, is a race based solution.  Many
jurisdiction choose to hold their elections that way for many good reasons.
Vote dilution is of course a race based problem, but the Appeals Court in
Sanchez v Modesto dealt with that. The remedy would only be subject to
strict scrutiny if it was race based and the prosed remedy is nowhere close
to what federal courts  have defined that way in other circumstances.

Relative to Abby's e-mail, this is the same objection to the CVRA that the
trial court in Modesto raised and was over-ruled by the appeals court. The
fact that you can imagine a case that would violate Equal Protection does
not mean that the law does, or that the remedy in this case does. It is the
proposed remedy that must be evaluated.

From: Rick Hasen [mailto:rhasen at law.uci.edu] 
Sent: Thursday, December 05, 2013 11:45 AM
To: Fredric Woocher; David Ely; law-election at department-lists.uci.edu
Subject: Re: [EL] Palmdale California VRA case (Fredric Woocher)

It also seems to me, for reasons given in Abby's email, that federal courts
might be interested if Palmdale or another city launched a race-based equal
protection claim against the CVRA on the basis that it imposes a race-based
solution which could not survive strict scrutiny.

On 12/5/2013 11:35 AM, Fredric Woocher wrote:

Not to get too deep into the weeds here on the charter city issue, but
neither of the cases cited in this brief passage support the conclusion that
a state statute like the CVRA (no matter how well-intentioned) can override
a charter city's choice regarding the "manner in which, the method by which,
[or] the times at which" the city's municipal officers are elected pursuant
to article XI, section 5, subdivision (b), of the California Constitution.
Edelstein did not reach the issue at all because it found no conflict
between the state and local laws.  And Johnson v. Bradley discussed the
framework for analyzing the potential conflict between state and local laws
under article XI, section 5, subdivision (a) - the more general "home rule"
provision under which a state law can indeed supersede a conflicting local
law if the state law is narrowly tailored to address an overriding statewide
concern.  At issue in Johnson v. Bradley was the validity of the City of Los
Angeles's public financing provision, which arguably conflicted with a state
law banning the use of public funds for candidate elections.  The Supreme
Court was not convinced that the campaign financing provision dealt with the
"manner in which" the city's officers were elected pursuant to subdivision
(b), but said that it did not have to reach the issue because it found the
city's law prevailed over the state law even under the more general - and
harder to satisfy - test under subdivision (a).

I don't think anyone could seriously contend that the choice of an at-large
vs. by-district election scheme does not deal with the "manner" or "method"
by which Palmdale's city councilmembers are elected, triggering the analysis
under subdivision (b) rather than subdivision (a) of article XI, section 5.
And under that analysis, as the California Supreme Court in Johnson v.
Bradley confirmed, the local law automatically prevails over the state
statute, without regard to whether the state law is narrowly tailored to
address a statewide (or even Constitutional) concern.  And I suspect that
you will see a clearer exposition of this principle from Marguerite Leoni
and Christopher Skinnell in their briefs to the appellate court on behalf of
the City of Palmdale (whom they now represent in this litigation) than in
the brief passage from their 2003 article cited by David below.

Fredric D. Woocher

Strumwasser & Woocher LLP

10940 Wilshire Blvd., Ste. 2000

Los Angeles, CA 90024

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 David
Ely
Sent: Thursday, December 05, 2013 10:52 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Palmdale California VRA case (Fredric Woocher)

The issue of Charter Cities rights have been raised in a number of cases as
well as in analysis of the CVRA.  Below is an excerpt from an article by
Marguerite Leoni and Christopher Skinnell to the Ca League of Cities in 2003
which does a good job of explaining why Charter Cities are covered.

It is true that a charter can provide for a form of government or electoral
process for a city that is different from the general law. A charter city,
however, remains subject to the California Constitution and would be
prohibited from adopting or maintaining a discriminatory electoral system or
electoral practices that violate the equal protection clause or the right to
vote. See Canaan v. Abdelnour, 40 Cal.3d 703 (1985), overruled on other
grounds by Edelstein v. City & County of San Francisco, 29 Cal.4th 164, 183
(2002); Rees v. Layton, 6 Cal.App.3d 815 (1970). Furthermore, California
courts have recognized that state statutes can override city charters if
they are narrowly tailored to address an issue of statewide concern, even in
the core areas of charter city control like election administration.
Edelstein, 29 Cal.4th at 172-174; Johnson v. Bradley, 4 Cal.4th 389, 398-400
(1992). The CVRA expressly provides that it is intended to implement the
guarantees of Section 7 of Article I (Equal Protection) and Section 2 of
Article II (Right to Vote) of the California Constitution, which are
themselves regarded as matters of statewide concern. See Cawdrey v. City of
Redondo Beach, 15 Cal.App.4th 1212, 1226 (1993).
http://www.cacities.org/UploadedFiles/LeagueInternet/f7/f736ba74-086a-4f5d-b
eb7-853d898691d8.pdf

They go on to discuss a possible argument that the CVRA is not narrowly
tailored, but all of the courts that have looked at these cases so far have
accepted that it is.

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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