[EL] FW: Palmdale California VRA case (Fredric Woocher)

[David Ely]

14027.  An 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 or the abridgment of the

rights of voters who are members of a protected class, as defined

pursuant to Section 14026.

 

Note the words "as the result of the dilution or the abridgment of the
rights of voters."

 

This combined with the implementation language makes clear which rights are
referred to here.

 

14031.  This chapter is enacted to implement the guarantees of

Section 7 of Article I and of Section 2 of Article II of the

California Constitution.

 

From: Fredric Woocher [mailto:fwoocher at strumwooch.com] 
Sent: Thursday, December 05, 2013 1:23 PM
To: David Ely; law-election at department-lists.uci.edu
Subject: RE: [EL] Palmdale California VRA case (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

(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
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

(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
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
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

(310) 576-1233

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