Ninth Circuit Remands California City’s Voting Plan

SAN DIEGO (CN) — California and city of Poway must defend the state’s Voting Rights Act, a Ninth Circuit panel ruled Thursday, reversing dismissal of 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. Sixty-three percent of Poway residents are white, 18 percent are Latino and 12 percent Asian; 1.4 percent are black.

Former Poway Mayor Don Higginson sued Poway and the state 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 claims the new voting system — enacted after another attorney sent Poway a demand letter asking it to comply with the California Voting Rights Act — violates the Equal Protection clause of the Fourteenth Amendment and amounts to racial gerrymandering.

The Ninth Circuit ruled in a 4-page order Thursday 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an injunction requiring the city to return to its former system of at-large elections,” the panel wrote in an unsigned, unpublished opinion.

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. If the district court so desires it, we look forward to making additional arguments or additional briefs,” Blum said.

Poway City Attorney Alan Fenstermacher said in a phone 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 will be taken up again in the U.S. Southern District of California, where his argument that the city violated his civil rights under the Equal Protection Clause in complying with the California Voting Rights Act, will be relitigated.

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

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

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