[EL] Palmdale California VRA case (Fredric Woocher)

Thu Dec 5 12:31:44 PST 2013

David Ely wrote:

"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 don't have any quarrel with that sentence, either, but the Palmdale plaintiffs did not bring their case alleging a violation of the equal protection clause or the right to vote under the California Constitution.  They brought the case solely as an alleged violation of the California Voting Rights Act, a state statute.

Just as you (and I) are confident that the California Supreme Court would not disagree with the proposition that a charter city remains subject to the California Constitution's equal protection clause [if one were to have alleged that the city violated that clause], I am equally confident that the California Supreme Court would not disagree with the proposition that the state legislature remains subject to the California Constitution's "home rule" clause protecting charter cities from state legislation that interferes with their "plenary authority" to provide for the manner and method in which their municipal officers are elected.  Of course, the city charter's exercise of that authority is subject to other constitutional constraints (such as the equal protection clause) and to federal statutory law (such as the federal VRA), but again, no allegation was made in the Palmdale lawsuit, much less proved, that the City's at-large system violated either Equal Protection of the VRA.

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: David Ely [mailto:ely at compass-demographics.com]
Sent: Thursday, December 05, 2013 12:18 PM
To: 'Rick Hasen'; Fredric Woocher; law-election at department-lists.uci.edu
Subject: RE: [EL] Palmdale California VRA case (Fredric Woocher)

"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<mailto: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<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> [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<mailto: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-beb7-853d898691d8.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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