[EL] Palmdale California VRA case (Fredric Woocher)

[Fredric Woocher]

David, I'll give it one last try, because I think this conversation is going nowhere and we'll just have to agree to disagree.  But I'm curious what section of the statute you are looking at to support your statement below that "The CVRA states that an at-large election scheme in the context of racially polarized voting  that causes vote dilution violates the constitutionally protected rights to vote and to equal protection."  Perhaps I need to go back to read the statute again, but I don't remember seeing that statement anywhere in the CVRA.  Merely because the CVRA states that it was enacted to "implement the guarantees" of the constitutional equal protection clause and the right to vote, does not mean that "a violation of the CVRA is a violation of those constitutional protections."

I will make you a deal:  I won't attempt to practice demography if you don't attempt to practice law.

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 1:07 PM
To: Fredric Woocher; law-election at department-lists.uci.edu
Subject: RE: [EL] Palmdale California VRA case (Fredric Woocher)

Let me try once more.  The CVRA does not limit or require any specific method of election that might conflict with a City Charter.  The CVRA states that an at-large election scheme in the context of racially polarized voting  that causes vote dilution violates the constitutionally protected rights to vote and to equal protection. By its own terms, a violation of the CVRA is a violation of those constitutional protections. A jurisdiction could try to argue that it was in violation of the CVRA but not in violation of those constitutional protections and thus the CVRA cannot override the City Charter, but that is pretty much the same thing as arguing that it is not narrowly tailored. If an appeals court finds that the CVRA is narrowly tailored, then the banned practice is a violation of the State Constitution, and Charter City status does not protect that.

From: Fredric Woocher [mailto:fwoocher at strumwooch.com]
Sent: Thursday, December 05, 2013 12:39 PM
To: 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)

Now you have indeed lost me, David.  The CVRA does not "create[] a cause of action for plaintiffs to argue that a city charter is in conflict with the State Constitution."  That would be a separate cause of action alleging a violation of the state constitution, and no state statute is necessary to "create" it.  The CVRA creates a cause of action for violation of the CVRA, whose standards and requirements are not identical to those of the Equal Protection Clause of the state constitution.

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 12:34 PM
To: Fredric Woocher; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: RE: [EL] Palmdale California VRA case (Fredric Woocher)

I don't think I made my point regarding this as clearly as I should have.  The CVRA itself is not in conflict with any City Charter.  The CVRA creates a cause of action for plaintiffs to argue that a city charter is in conflict with the State Constitution.  The State Constitution clearly predominates.  You might argue that the CVRA does not properly address the constitutional issues but that is where the narrowly tailored discussion comes into play.

From: Fredric Woocher [mailto:fwoocher at strumwooch.com]
Sent: Thursday, December 05, 2013 11:35 AM
To: 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)

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
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