Ninth Circuit Takes New Swipe at Ex-Mayor’s Fight of Voting Districts

PASADENA, Calif. (CN) – A Ninth Circuit panel scrutinized a former Southern California mayor’s challenge to the state’s Voting Rights Act on Tuesday, seeming to doubt his claim that a change in the way the city elects its council members had unconstitutional consequences.

“How is your client worse off?” U.S. Circuit Judge Andrew Hurwitz asked Jeffrey Harris, attorney for ex-Poway mayor Don Higginson.

Former Poway Mayor Don Higginson.

Harris answered, “He used to be able to vote for four City Council members, and now he is in a district that was drawn solely for racial reasons and he can now only vote for one.”

Poway is a wealthy city of 50,000 in north-central San Diego County, where 63% of residents are white, 18% are Latino, 12% Asian and 1.4% are black.

Poway changed its citywide, “at-large” system for electing its four City Council members to a by-district voting system after receiving a letter from Mailbu attorney Kevin Shenkman. Shenkman claimed the at-large system violated the California Voting Rights Act by diluting the Latino population’s ability to elect candidates who will represent their interests.

Hurwitz had trouble finding the wrong in the city’s compromise to avoid litigation.

“No one ordered Poway to redistrict,” Hurwitz said. “A private lawyer sent a letter saying I’m thinking of suing you, and they decided, quite sensibly I think, why go through the trouble, we will redistrict. How does that translate to your ability to challenge the act?

Harris said the “whole CVRA scheme is designed to put a gun to the city’s head” and force the city to redistrict on the basis of race.

He stopped short of calling the case one of racial gerrymandering, even when pressed by U.S. Circuit Judge Mary Murguia, insisting Higginson was bringing an equal protection claim based on “racial predominance.”

The attorney called the shift a major policy change that deprives voters of their ability to vote for all the city’s council members. He told the judges that California must prove its Voting Rights Act, even if altruistically motivated to prevent disenfranchising minority voters, passes constitutional muster.

Hurwitz said he didn’t believe he could assign a racial motive to the city’s decision, saying it looked to only have been done to avoid a lawsuit. He said Higginson’s lawsuit seems to differ from Ricci v. DeStefano, where the U.S. Supreme Court found the city of New Haven illegally discarded the results of firefighter exams on which minorities performed poorly. The court held the city should have made sure it would have been subject to disparate impact liability before intentionally discriminating against white firefighters by tossing the exams.

Hurwitz said although Higginson relied on that case, the situations were too different.

“Here what the city did was simply redistrict. They may have done it to avoid a lawsuit, but their actions are much more indirect here.”

A Ninth Circuit panel previously revived Higginson’s lawsuit, finding the former mayor had adequately alleged gerrymandering. The case remanded to U.S. District Judge William Hayes, who again denied Higginson’s request to enjoin the redistricting plan in October 2018.

Deputy Attorney General Joshua Klein said Higginson cannot show he was treated differently because of his race, which is fatal to his constitutional claim.

“Here, what he has to show in addition to the injury of having fewer races to vote on, he has to show he’s been treated differently than another person on the basis of race. He can’t show that even in Poway, let alone statewide,” Klein said.

The judges asked Poway City Attorney Alan Fenstermacher when the city would need a decision. He said the city, which has taken a neutral position on the case, would like an answer by May 2020 to give it time to prepare for the November 2020 election.

Hurwitz and Murguia – both Barack Obama appointees – were joined by Senior U.S. District Judge Louis Guirola Jr., a George W. Bush appointee sitting by designation from the Southern District of Mississippi.

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