White Ex-Mayor Can Challenge Race-Based California Districts

SAN DIEGO (CN) — Imagine this: The white ex-mayor of a wealthy city in Southern California, which is just 1.4 percent black, complains that he was placed in a racially gerrymandered district when the city went from at-large to district voting for City Council. You need not imagine it: the Ninth Circuit reversed dismissal and remanded the case this week.

California and city of Poway must defend the state’s Voting Rights Act, a Ninth Circuit panel ruled Thursday, reviving a constitutional complaint from a former mayor of San Diego County’s “City in the Country.”

Poway is a wealthy city of 50,000 in north-central San Diego County. Its median household income of $105,241 in 2016 was 55 percent higher than the statewide median of $67,739, according city-data.com, and the median value of a home or condo there, $676,735, was 42 percent higher than the statewide median of $477.500. In Poway, 63 percent of residents are white, 18 percent are Latin, 12 percent Asian and 1.4 percent are black.

Represented by the Virginia firm Consovoy McCarthy Park, former Poway Mayor Don Higginson sued Poway and the state in October last year over the city’s decision to create a by-district voting system, ditching its at-large system for electing City Council members.

Higginson, who is white, claims the new voting system violates the equal-protection clause of the 14th Amendment and amounts to racial gerrymandering, by “separating its citizens into different voting districts on the basis of race.”

North Poway is the wealthy side of town, with virtually no businesses but a golf course. South Poway is poorer, more heavily Latino, and the city’s commercial section. Higginson, a lawyer, lives on the north side of town.

Poway changed from at-large voting in City Council elections to voting by districts after an attorney sent it a demand letter asking it to comply with the California Voting Rights Act.

The crux of Higginson’s argument lies in the opening paragraphs of his 15-page lawsuit. His attorney, Brian Weir cited the 1986 U.S. Supreme Court ruling in Thornburg v. Gingles on Section 2 of the Voting Rights Act.

“The court held that an at-large voting system will violate Section 2 only if a minority group proves both that it can form a compact single-member district and that voting is racially polarized,” he wrote. “These requirements, the court has warned, ensure that Section 2 is an anti-discrimination provision, and not an unconstitutional mandate to maximize electoral power on the basis of race.”

But Higginson claims that the California Legislature “did not heed the Supreme Court’s warning,” but passed its own law, the California Voting Rights Act of 2001, “to override the constraints the Supreme Court has imposed in an attempt to save Section 2 from unconstitutionality.”

“Under the CVRA, local governments must abandon at-large voting systems if racially polarized voting exists — regardless of whether the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district,” he added. “Accordingly, the CVRA flagrantly violates the Fourteenth Amendment. Its ‘race-based sorting of voters’ does not serve a ‘compelling interest’ nor is it ‘narrowly tailored.’”

Attorneys have argued in other voter-rights cases that at-large voting discriminates against minorities because in an Anglo-majority city, the white vote can and does swamp others.

Defending the state during a June 7 hearing, Deputy Attorney General Amie Medley told the Ninth Circuit panel that Higginson had failed to allege he was harmed by the new system because it allows to him vote for only one City Council member, rather than four, as under the previous system. (Voting for the mayor, the fifth member of the council, is a separate ballot item.)

But U.S. Circuit Judge Susan Graber responded: “He’s a voter and if he used to get four votes and now only gets one vote. How is that not an injury in fact?”

In its 4-page order on Thursday, the Ninth Circuit ruled that 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.”

“This alleged injury is concrete and particularized, directly traceable to the city’s adoption of Map 133, and potentially redressable by an injunction requiring the city to return to its former system of at-large elections,” the unsigned, unpublished opinion from the court states.

Edward Blum, president of The Project on Fair Representation, a legal-defense fund in Washington, D.C., which is paying for Higginson’s legal representation, said he was “delighted” by the ruling.

“On behalf of Don Higginson we are delighted the Ninth Circuit has concluded he has standing to pursue the merits of this case,” Blum said. “If the District Court so desires it, we look forward to making additional arguments or additional briefs.”

The Project on Fair Representation, founded in 2005, provides pro bono legal representation to people who challenge affirmative action and the Voting Rights Act. Recently, it filed an amicus brief supporting the inclusion of a question about U.S. citizenship in the 2020 U.S. census.

Poway City Attorney Alan Fenstermacher said in a telephone interview that the main concerns for the city are “reducing impacts on taxpayers and the upcoming election.”

“The city will continue to push the court for quick action to reduce impacts on the election,” Fenstermacher said.

Higginson’s case returns on remand to the U.S. Southern District of California for new litigation of his argument that the city violated his civil rights under the equal-protection clause in complying with the California Voting Rights Act.

California Attorney General Xavier Becerra will also have to face Higginson’s claims, as the Ninth Circuit panel reversed dismissal of the attorney general.

The Attorney General’s Office did not respond to an email request for comment.

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