Former SoCal Mayor Loses Second Bid to Block New Voting Districts

SAN DIEGO (CN) – A federal judge Tuesday blocked a second attempt by a former SoCal mayor to prevent the city of Poway from implementing its new by-district system for electing City Council members this November, which he claims amounts to racial gerrymandering.

Former Poway mayor Don Higginson sued the city last year over its decision to create a new by-district voting system for electing city council members that replaced its at-large system.

That at-large system had already been challenged by an attorney unrelated to Higginson’s case, who said it violated the California Voting Rights Act.

The California Voting Rights Act, passed in 2001, prohibits at-large elections if they would dilute the votes of a minority class.

But Higginson says both the new by-district voting system and California Voting Rights Act violate the Equal Protection Clause of the Fourteenth Amendment.

After U.S. District Judge William Hayes dismissed the city of Poway and Attorney General Xavier Becerra from the suit in February and denied Higginson’s motion for a preliminary injunction, Higginson appealed to the Ninth Circuit, which ruled in his favor, sending the case back to the Southern District of California.

According to the Ninth Circuit, Higginson “adequately alleged that he resides in a racially gerrymandered district and that the city’s adoption of Map 133 reduced the number of candidates for whom he can vote.”

Higginson revived his motion for a preliminary injunction in August to prevent Becerra from enforcing the California Voting Rights Act and the city of Poway from using its new by-district Map 133 – a four-district plan – during elections while the case is pending.

Hayes again declined Higginson’s request in a 16-page order Tuesday, finding the by-district elections should proceed during the upcoming midterms on Nov. 6 in consideration of the money and time the Registrar of Voters has already spent on candidate materials and ballots.

“We’re happy we don’t have to spend an extreme amount of taxpayer money to change the method of the election at the eleventh hour, with five weeks to go,” Poway City Attorney Alan Fenstermacher said in a phone call.

Fenstermacher added that the city did not oppose Higginson’s preliminary injunction based on the merits of the case, but on the hardship the city would face if required to abandon its by-district method of electing City Council members.

The Nov. 6 City Council election is the first election cycle in Poway in which the new by-district election – which is compliant with the California Voting Rights Act – will take place.

The city would be on-the-hook for printing and distributing new ballots with a price tag expected to cost more than $650,000 “and potentially seven figures, if such a process is even possible,” Hayes wrote.

“The additional time and resources required to comply with such an injunction ‘would greatly disrupt the normal operations of the city,’” Hayes wrote.

While Higginson insists Poway’s districting decisions were race-based, Hayes disagreed.

The judge found returning to the previous elections protocol would not restore the status quo since “the requested injunction would require a different voting plan and new election materials” which would “confuse, and affect the conduct of, voters and election officials.”

“The court finds that the balance of equities does not tip in Higginson’s favor, and that the public interest counsels against granting a preliminary injunction.  An injunction at this stage in the proceedings would disrupt the status quo and harm the public interest,” Hayes wrote.

The judge is also allowing the city to continue enforcing the California Voting Rights Act.

Higginson is represented by Jeffrey Harris with Consovoy McCarthy Park, who did not return an email request for comment.

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