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February 24, 1992

CARLITO J. CARDONA, et al., Plaintiff (s),

The opinion of the court was delivered by: FERN M. SMITH



 School Director Districts for the Oakland Unified School District, last redrawn in 1984, are scheduled to be redrawn next year on the basis of the 1990 census. City of Oakland Charter ยง 203. Elections for four of the seven School Director Districts, however, will take place this year using the current 1984 Districts. Plaintiffs claim that the current districts violate the one person one vote requirement. (Based on the 1990 census, there is an undisputed population variance of 17.8% between the most populated and the least populated School Director Districts.) Plaintiffs accordingly seek a preliminary injunction to compel redistricting this year in time for the June 2, 1992 primary election. Alternatively, they seek an order postponing the election until November 1992 so that redistricting can be carried out in the interim.

 For the reasons discussed below, Plaintiffs' motion for a preliminary injunction is DENIED and this action is DISMISSED. *fn1"


 On July 17, 1989, the United States Department of Commerce stipulated that it would conduct a Post Enumeration Survey ("PES") to evaluate the accuracy of the 1990 census. The Secretary of Commerce also agreed to decide by July 15, 1991 whether to order adjustment of the census figures based on the results of the PES. The stipulation was entered into as part of litigation in which several states and cities sought injunctive relief to bar the Department of Commerce from conducting the census without conducting a PES and to require adjustment for the minority undercount. See City of New York v. United States Dept. of Commerce, 739 F. Supp. 761 (E.D.N.Y. 1990). On April 26, 1991, the City of Oakland, California was granted leave to intervene as a plaintiff in City of New York.

 On October 17, 1989, the Oakland City Council adopted Resolution No. 66687 CMS, entitled "Resolution Maintaining The Current City Council Boundaries and Directing Staff To Prepare Necessary Legislation For A Proposed City Charter Revision For The June 1990 Ballot To Redraw District Boundaries Beginning 1993 And Every Ten Years Thereafter." At the June 5, 1990 election, Oakland's voters passed Measure F by a vote of 38,131 to 21,705, amending Section 203 of the Oakland City Charter. The ballot label for Measure F stated: "Shall Section 203 of the Charter of the City of Oakland be amended to change the time for redrawing City Council district boundaries from 1984 and every six years thereafter to 1993 and every ten years thereafter?" *fn2"

 In April 1991, the Department of Commerce provided the results of the 1990 census to the City of Oakland. In a letter dated June 5, 1991, Fred W. Lopez, one of Plaintiffs' attorneys, asked the Oakland City Attorney whether Oakland City Charter Section 203 would allow the City Council to form new districts prior to 1993. In a letter dated June 12, 1991, Assistant City Attorney Joyce M. Hicks answered in the negative. The letter noted that "[t]he Oakland City Council does not have the authority to amend the charter, sua sponte. A charter amendment can only occur by election upon adoption by a majority vote of the voters in the election." The letter further noted that the Charter had been so amended in 1990 to change from redistricting in 1984 and every six years thereafter to redistricting in 1993 and every ten years thereafter, and continued:

 The rationale behind the reapportionment charter amendment was to relate Oakland's reapportionment actions to accurate census figures while allowing for the reapportionment to take place in a non-election year . . . . The Council kept in mind that the odd number year immediately following the decennial census might be too soon for an accurate count since the census procedures provide for a post enumeration survey and adjustment to the figures . . . .

 On November 21, 1991, Plaintiffs filed their Complaint For Injunctive and Declaratory Relief. Defendants, the City of Oakland and the Oakland Unified School District, filed their Answer on December 12, 1991. On February 4, 1992, Plaintiffs filed a Motion for Temporary Restraining Order. The Court construed Plaintiffs' motion for a temporary restraining order as a motion for a preliminary injunction and issued an Order Setting Briefing Schedule and Hearing Date. *fn3"

 February 5, 1992 was also the deadline for a candidate to become a resident of the district in which the candidate would seek election at the June 1992 primary election. The period for filing nomination papers commenced on February 10, 1992 and several candidates have now filed to run in the June primary election and paid a $ 300 filing fee. The last day to file nomination papers is March 6, 1992. The primary election for City Council and School Director Districts from Districts 1, 3, 5 and 7 is set for June 2, 1992. The run-off election is set for November 3, 1992.


 A. Preliminary Injunction

 The standard for granting a preliminary injunction in redistricting cases does not differ from the general preliminary injunction standard. That standard, set forth in EEOC v. Recruit, U.S.A., Inc., 939 F.2d 746, 752 (9th Cir. 1991), requires that Plaintiffs demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips sharply in their favor. Under either test, *fn4" a court must always consider whether the public interest would be advanced or impaired by issuance of an injunction in any action in which ...

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