Federal lawsuit targets move to voting districts

ENCINITAS — An Encinitas councilman said he believes the city should partner with the former mayor of Poway in his lawsuit to halt a widespread — and in many cases, reluctant — movement in California to change the way voters elect their local representatives.

Encinitas is one of several cities in North County and across the state that is in the process of changing their election system from one where voters elect council members by district, as opposed to in citywide elections. The changes are the result of a threat of legal action by a Malibu-based law firm, who argues that citywide, or “at-large” elections, disenfranchise Latino voters.

Former Poway Mayor Don Higginson, with the backing of a conservative think tank and law firm, earlier this month sued Poway and the State Attorney General in the U.S. Southern District Court, challenging the state law that has paved the way for these challenges. On Oct. 19, he raised the stakes by filing a request for a preliminary injunction that would halt the districting processes statewide until the lawsuit is decided.

If approved, the preliminary injunction would likely mean that cities such as Encinitas that are currently planning on having their first district elections in November 2018 would not have to do so.

Encinitas Councilman Tony Kranz, who opposes the districting movement, said that he has asked the city to place an item on the closed-session agenda to discuss the possibility of attaching itself to Higginson’s suit. To date, the meeting has not been placed on an agenda.

“My feeling is that the city should become directly involved, and we should advocate for the position that Mayor Higginson has taken,” Kranz said. “That is my fairly adamant position that districting is not good for the city, I agree with arguments made in (the) lawsuit, and we should be making (the) court aware we believe (the) arguments are legitimate.”

Encinitas Mayor Catherine Blakespear, who controls the placement of items on the agenda, said that she has placed a closed-session agenda item on the city’s next districting meeting, Oct. 30.

“We’re going to be discussing it,” she said.

Higginson’s lawsuit challenges the California Voting Rights Act, which allows for a plaintiff to challenge a city’s at-large elections system if “racially polarized voting” exists. Higginson’s attorney Bryan Weir argues that the state law violates the “equal protection clause” of the 14th Amendment, which was meant to prohibit racial gerrymandering in legislative districting plans.
The federal Voting Rights Act of 1965 outlines protections against voter dilution aimed at diluting minority voting power, but Weir argues that the Supreme Court has held that a minority group would have to prove both that there is a concentration of minorities enough to create a single-member district and that racially polarized voting has occurred.

Because the state law sidesteps the former of the two requirements, Weir argues that the state law is unconstitutional.

“The CVRA makes race the predominant factor in drawing electoral districts,” Weir writes in the complaint. “Indeed, it makes race the only factor given that a political subdivision, such as the city, must abandon its at-large system based on the existence of racially polarized voting and nothing more.”

Encinitas received a threat letter in July from attorney Kevin Shenkman, of the Malibu-based firm Shenkman & Hughes, which alleged that the city didn’t have a history of electing Latinos, and was in violation of the state Voting Rights Act.
Residents and elected officials decried the letter, which they said was inaccurate, pointing to the fact that two women of Hispanic decent had been elected to the City Council — Teresa Arballo Barth and Lou Aspell.

Like most cities, however, Encinitas chose to begin the process of forming electoral districts rather than fight the case in court because there is no city on record that has successfully challenged the state law in court. Palmdale fought a similar request and lost in 2012, which cost the city millions in legal fees.

Kranz earlier this month made a closed-session motion to put the districting process on hold, but the council voted 3-2 against it, with Councilman Mark Muir voting with Kranz.

Blakespear said she believes the city should proceed with the districting process as normal, which includes two more public hearings on Nov. 8 and Nov. 15 in which the city is expected to vote on the final maps and the ordinance establishing district elections and the election sequence.

“We operate under the law as it is, but I think we are in that 90-day ‘safe harbor’ window and we need to proceed with our process,” Blakespear said, referring to the 90-day window in which a city has to complete the districting process without being sued. “If there is an injunction, we would be responsive to that, but as it stands we need to proceed along.”

It is not clear when the federal court judge will decide on Higginson’s injunction request.

Correction: Due to a reporting error, Don Higginson was identified as the mayor of Poway. He is the former mayor of Poway. 

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