Judge Gives Former SoCal Mayor Another Chance on Voting Rights Act Claims

SAN DIEGO (CN) – A federal judge gave a former SoCal mayor another chance to bring claims for civil rights violations related to a new system for electing city council members in Poway, California.

In his lawsuit, former Poway Mayor Don Higginson claimed Poway City Council members instituted a by-district system of voting – ditching its at-large system where voters could vote for all city council seats – after the city received a letter threatening a lawsuit and claiming “Poway’s at-large system dilutes the ability of Latinos (a ‘protected’ class) to elect candidates of their choice or otherwise influence the outcome of Poway’s council elections.”

But U.S. District Judge William Hayes found Higginson’s claims the California Voting Rights Act was passed “to maximize minority voting strength” don’t hold up since he has not demonstrated a legislative “effort to segregate the races for purposes of voting.”

“The court finds that Higginson’s allegations, accepted as true, with reasonable inferences drawn in his favor, do not state a racial gerrymandering claim subject to strict scrutiny analysis under the Equal Protection Clause,” Hayes added.

In a 15-page order Monday, Hayes dismissed Higginson’s lawsuit claiming the city’s new voting system violates his Fourteenth Amendment equal protection rights and amounts to racial gerrymandering.

Hayes gave Higginson 30 days to file an amended complaint.

Edward Blum, director of The Project on Fair Representation, a legal foundation paying for the legal fees in Higginson’s case, said they are “disappointed with this ruling.”

“We have every intention of appealing it to the Ninth Circuit,” Blum added.  

That would mark the second appeal in the case. Last year, Higginson appealed Hayes’ dismissal of the case for lack of standing, but the Ninth Circuit reversed and remanded Hayes’ decision in a four-page order, finding Higginson had 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.”

Hayes’ blocked Higginson’s revived motion for a preliminary injunction last fall to prevent California Attorney General Xavier Becerra from enforcing the California Voting Rights Act and the city of Poway from using its new Map 133 – a four-district plan – during the 2018 elections.

In his order Monday, Hayes found Higginson’s claims “do not support the inference that state actors –those who passed the CVRA, or those who implemented it through Map 133 – classified Higginson into a district because of his membership in a particular racial group.”

City Attorney Alan Fenstermacher represents the city of Poway. He did not return a phone and email request for comment. 

John Michael Connolly with Consovoy McCarthy Park represents Higginson. Connolly also did not return a phone request for comment.

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