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

[John Tanner]

This exchange and my severe seasonal shopping avoidance syndrome prompted
me to look at articles 1 and 2 of the CA constitution.  Article 1 section
7, the equal protection clause, mainly goes on and on to prohibit busing
(and 7.5 prohibits same-sex marriage) but also gives the legislature power
with respect to privileges and immunities.  Article 2 section 2 seems very
narrowly written - resident citizens over 18 "can vote", period - nothing
about a "right to vote" which would prompt broader interpretation.  I
presume the SCOCA (I just made that up) has fleshed things out, but I
certainly can see why there may be no clear resolution to the controversy.


On Thu, Dec 5, 2013 at 4:48 PM, David Ely <ely at compass-demographics.com>wrote:

> 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<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<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<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<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<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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