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May 11, 1992

TINA C. DeBACA, JAMES MINER, and ELENA ANITA MORENO, on behalf of themselves, and all others similarly situated, Plaintiffs,
COUNTY OF SAN DIEGO, NORMAN HICKEY, Chief Administrative Officer of San Diego County, BRIAN P. BILBRAY, County Board of Supervisors, GEORGE F. BAILEY, County Board of Supervisors, SUSAN M. GOLDING, County Board of Supervisors, LEON L. WILLIAMS, County Board of Supervisors, JOHN MacDONALD, County Board of Supervisors, Defendants.

The opinion of the court was delivered by: JOHN S. RHOADES, SR.

 The plaintiffs, a Hispanic woman, an African-American man, and an Asian-American woman, have brought this class action alleging that the County's 1991 redistricting plan violates the rights of San Diego County Hispanic, African-American, and Asian-American citizens under the equal protection clause of the fourteenth amendment and under § 2 of the Voting Rights Act, 42 U.S.C. § 1973. *fn1" The plaintiffs move to certify their class and to enjoin the June 2, 1992 election for seats on the county Board of Supervisors. The defendants move for summary judgment. For reasons outlined below, I grant the defendants' motion for summary judgment and deny as moot the plaintiffs' motions to enjoin the June 2, 1992 election and to certify the plaintiff class.


 Although the burdens and methods of proof are different for each of the instant motions, the underlying legal standards are substantially similar. The plaintiffs argue that the redistricting plan violates their rights for two primary reasons: because it evidences intentional discrimination that is prohibited by the equal protection clause, and because it dilutes their voting power under the "results" test set out in § 2 of the Voting Rights Act. *fn2" I will refer to these arguments as the constitutional claim and the § 2 claim respectively. The legal standards for these claims are set out below.

 It is important to understand the context in which these standards have been established. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Id. at 561-62. "The right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Id. at 555.

 As Chief Justice Warren noted in Reynolds, "history has seen a continuing expansion of the scope of the right of suffrage in this country." Id. Indeed, the scope of the right of suffrage has continued to expand since Reynolds was decided. The Voting Rights Act of 1965 and its amendments as well as the twenty-sixth amendment to the Constitution represent more recent expansions.

 Given the importance of the right of suffrage, it is vital to protect the right of suffrage as effectively as possible. As Thomas Jefferson wrote, "I know of no safe depository of the ultimate powers of the society but the people themselves." Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820). Because the judiciary is the least democratic of our three branches of government, there is an inherent danger in entrusting courts rather than elected legislative bodies with the responsibility of deciding public policy questions that relate to the protection of ultimate rights such as the right of suffrage.

 Courts themselves have recognized this conflict in voting rights cases. Discussing the difficulty in weighing the political interests of two different minority groups that co-exist in the same community, one commentator wrote:

 Rick G. Strange, Application of Voting Rights Act to Communities Containing Two or More Minority Groups--When is the Whole Greater than the Sum of the Parts?, 20 Tex. Tech. L. Rev. 95, 124-25 (1989) (quoting Marshall v. Edwards, 582 F.2d 927, 934 (5th Cir. 1978), cert. denied, 442 U.S. 909, 61 L. Ed. 2d 274, 99 S. Ct. 2820 (1979)) (other citations omitted).

 One court has recognized a particularly pernicious possible result of judicial overreaching in voting rights cases. Facing a voting rights case raising legal issues similar to those in the case at bar, the court in Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991), wrote:

 The idea that race or ethnicity, or language, or religion might become the basis for distributing voters during the periodic redistricting process runs counter to our professed belief in the "oneness" of American political life and to the belief in Democracy itself with its emphasis on the individual citizen. There is no one coherent political philosophy, political principle or political program subsumed under such group labels as "black citizens," "white citizens," "Asian citizens," or "Hispanic citizens." Historically we Americans have opted to pursue the ideal of equal political opportunity for each individual citizen. The standard is "one person, one vote." When we speak in terms of "group political rights" for such categories of voters we are immediately in deep water, for so much of real political significance may be hidden under such group labels.

 Id. at 562. The Turner opinion also noted the opinions of a commentator, Abigail Thernstrom, who observed:

 "Race may still have much to do with the way people vote. Often too much. But we build the expectation of racial separation into our basic political structure at our peril. Reality is not perfect, but our principles should remain so. We need electoral arrangements that deliver the right messages.

 "And the right messages are: that we are all Americans, that we're in this together, that the government thinks of us and treats us as individual citizens with individual (not group) rights, that whites can represent blacks and blacks can represent whites, that we have no need for legislative quotas since distinct racial and ethnic groups are not nations in our society and that race does not and should not define the content of our character, political or otherwise."

 Id. at 561-62 (quoting Abigail Thernstrom, Washington Post, Sept. 23, 1991, at All).

 The case at bar raises many difficult questions that others wisely have found lie beyond the ambit of principled judicial decision-making. Certainly a federal court should not hesitate to act when the Constitution or an Act of Congress has been violated. But absent such a violation, a court best can safeguard the ultimate powers of society by allowing the people to speak through the democratic process.

 A. Constitutional Claim

 To prove a constitutional violation, the plaintiffs must demonstrate the existence of a discriminatory purpose, Garza v. County of Los Angeles, 756 F. Supp. 1298, 1349 (C.D. Cal.), aff'd, 918 F.2d 763 (9th Cir. 1990), and some injury resulting from the intentional discrimination, Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir. 1990). Addressing the existence of intentional discrimination in the maintenance of an at-large voting system, the Supreme Court held that such systems violate the fourteenth amendment if they are "conceived or operated as purposeful devices to further racial discrimination by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population." Rogers v. Lodge, 458 U.S. 613, 617, 73 L. Ed. 2d 1012, 102 S. Ct. 3272 (1982). Although intentional discrimination cannot be shown merely by demonstrating that a law

 affect[s] a greater proportion of one race than another . . ., discriminatory intent need not be proved by direct evidence. . . . An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. Thus determining the existence of a discriminatory purpose demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.

 Id. at 618. As discussed below, the requirements for an injury showing are somewhat undefined.

 B. § 2 Claim

 Section 2 of the Voting Rights Act was amended in 1982 "to provide minority groups a remedy for vote dilution without requiring a showing that the majority engaged in intentional discrimination." Garza, 918 F.2d at 769-70. Instead of requiring intentional discrimination, the amendment reaches discriminatory "results."

 The 1982 amendment was construed in the context of multimember districts in Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986). Gingles set up three preconditions

 for multimember districts to operate to impair minority voters' ability to elect representatives of their choice. . . . First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. If it is not, as would be the case in a substantially integrated district, the multimember form of the district cannot be responsible for minority voters' inability to elect its candidates. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it--in the absence of special circumstances, such as the minority candidate running unopposed--usually to defeat the minority's preferred candidate. In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives.

 Id. at 50-51 (citations omitted). Once these preconditions are met, the court must consider whether the results are discriminatory under a totality of the circumstances test. See id. at 43 (citing § 2(b) of the Voting Rights Act).

 It is important to note that these legal standards were developed in cases that are factually distinguishable from the case at bar in two important ways. First, the case at bar involves redistricting of five single-member districts. By contrast, the Gingles standard for § 2 violations applies to multimember districts. The Supreme Court noted this distinction in Gingles. See id. at 47 n.12 ("We note . . . that we have no occasion to consider whether the standards we apply to [the] claim that multimember districts operate to dilute the vote of [certain] geographically cohesive minority groups . . . are fully pertinent to other sorts of vote dilution claims, such as a claim alleging that the splitting of a large and geographically cohesive minority between two or more . . . single-member districts resulted in the dilution of the minority vote.") Second, the case at bar involves an allegation that three minority groups, i.e., African-Americans, Hispanics, and Asian-Americans, should be treated as one cohesive minority group. By contrast, Gingles and most of the other cases cited rely on the existence of one cohesive racial minority. The plaintiffs "aggregate" African-Americans, Hispanics, and Asian-Americans for the purposes of both their constitutional and their § 2 claims.


 A. Injunctive Relief

 The plaintiffs seek a preliminary injunction. To prevail on a request for preliminary injunctive relief, the moving party must show 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 its favor. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 753 (9th Cir. 1982). These formulations are not different tests; they represent two points on a sliding scale in which the showing of irreparable harm must increase as the probability of success on the merits decreases. Odessa Union, 833 F.2d at 174. Under either standard, the moving party must demonstrate a significant threat of irreparable injury irrespective of the magnitude of the injury. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). A district court also must consider the public interest as a factor in balancing the hardships when the public interest may be affected. American Motorcyclist Association v. Watt, 714 F.2d 962, 967 (9th Cir. 1983).

 B. Summary Judgment

 Fed. R. Civ. P. 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). A moving party that does not bear the burden of proof at trial may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the nonmoving party's claim. Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 3187, 111 L. Ed. 2d 695 (1990); United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). Instead, "'the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.'" Lujan, 110 S. Ct. at 3187 (quoting Celotex, 477 U.S. at 323).

 Once the moving party meets the requirement of Rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325. Such evidence need not be in a form ...

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