Ninth Circuit Tosses Ex-Mayor’s Challenge of Voting Districts

SAN DIEGO (CN) – Burying a challenge by the city’s former mayor Wednesday, the Ninth Circuit found that the new by-district voting system for electing City Council members in Poway, California, does not amount to racial gerrymandering.

In an unpublished 4-page memo, U.S. Circuit Judges Andrew Hurwitz and Mary Murguia – both Barack Obama appointees – were joined by Senior U.S. District Judge Louis Guirola Jr.,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, in affirming dismissal of the case.

Former Poway Mayor Don Higginson.

The panel found former Poway Mayor Don Higginson had failed to plausibly state he was a victim of racial gerrymandering when new election districts were drawn after Malibu attorney Kevin Shenkman sent a letter to the City Council threatening to sue the city. Shenkman claimed the city’s previous at-large system of electing City Council members diluted the Latino vote in violation of the California Voting Rights Act.

“Plaintiff alleges no facts concerning the city’s motivations for placing him or any other Poway voter in any particular electoral district,” the panel wrote Wednesday.

“Similarly, he fails to cite any language in the CVRA that mandates how electoral districts can or should be drawn.”

The decision reverses course on a previous Ninth Circuit finding Higginson had successfully alleged “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’s attorney argued before the panel last month he was worse off because of the newly drawn districts.

“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,” Consovoy McCarthy attorney Jeffrey Harris said.

Edward Blum of The Project on Fair Representation, which is paying Higginson’s legal fees, said in an interview the case is likely to be appealed either to the en banc Ninth Circuit or to the U.S. Supreme Court.

“Many observers believe that this case will be directly appealed to the U.S. Supreme Court,” Blum said.

Poway City Attorney Alan Fenstermacher said the decision does not change anything for the city, which will continue implementing its by-district method of election.

The city took a neutral position on the case, with its concerns focused on impacts to taxpayers from the litigation and any potential election method changes it could spur.

State Attorney General Xavier Becerra’s office applauded the ruling.

“The California Voting Rights Act is a critical tool for protecting minority voting power in our state. Our office applauds today’s decision and the efforts of our legal team in upholding the constitutionality of the act,” Becerra’s office said in a statement.

The Mexican American Legal Defense and Educational Fund, which intervened in the case in June 2018 to defend access to political representation guaranteed by the CVRA, had strong words for Higginson.

“From the start, this lawsuit was about pursuing a partisan, political agenda, not about a former mayor’s voting rights,” said Thomas A. Saenz, president and general counsel of the group.  “The Ninth Circuit has now recognized how meritless the suit was and has now shut down this unwarranted right-wing attack on California voting rights protections.”

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