B. Preservation of Legitimate Community Interests
The Supreme Court has permitted deviations from the one-person-one vote requirement of the Fourteenth Amendment to the Constitution where justified by the furtherance of clear state policies. See, e.g., Karcher v. Daggett, 462 U.S. 725, 740-41 (1983). As noted above, the California Elections Code identifies the maintenance of "community of interests" in drawing legislative districts as a policy of the State of California. Cal. Elec. Code § 35101 (West 1989 & Supp. 1992).
To create two districts with Hispanic populations exceeding 60%, Mr. Avila has placed a portion of northern Monterey County and all of southern Monterey County into a single district.
North County residents contend that a single supervisor cannot advance the interests of these two regions without doing a disservice to one.
The agriculture industry, albeit of different magnitudes, is common to both North and South County. Where North and South County differ is in the provision of municipal services. North County lacks municipal services. In contrast, South County has four urban centers, Gonzalez, Greenfield, King City and Soledad, each furnishing South County residents with various public services. The court advises the parties to give further consideration to the North County community of interests in an effort to afford this region more harmonious representation.
Unfortunately, only with great difficulty can one maximize the voting strength of the County's Hispanic community and still preserve the legitimate community interests of North County. In balancing the advancement of minority voting strength against the preservation of legitimate community interests, the parties are reminded that while the maintenance of community interests is a permissible consideration, racial fairness is mandatory.
V. CONSEQUENCES OF COUNTY'S FAILURE TO OBTAIN QUALIFIED PLAN
If the County disregards this opportunity to devise a redistricting plan of its own or if the Department of Justice does not preclear any plan the County might propose, the court will install a interim redistricting plan. Wise v. Lipscomb, 437 U.S. 535, 540 (1970). Should either event arise, the court's present inclination is to utilize the Avila Plan, subject to certain modifications.
Rather than venture into an in-depth analysis of an exclusive list of plausible modifications to the Avila Plan, the court makes two observations. First, if the Avila Plan remains under consideration as an interim plan, the court may wish to modify that plan to buttress the existing North County community of interests.
Second, the parties will need to address the implications of renumbering the supervisorial districts to conform with the Avila Plan. The Avila Plan would require the court to renumber the County's supervisorial districts, thereby advancing the date by which Supervisor Barbara Shipnuck, representing the City of Salinas, must defend her seat. In response to the County's concerns, the court makes several observations.
The Supreme Court regards state policies favoring the avoidance of contests between incumbent legislators as a legitimate justification for minor population deviations, provided the state does not have a discriminatory purpose in preserving incumbency. Karcher v. Daggett, 462 U.S. 725, 740 (1983) ("Any number of consistently applied legislative policies might justify some variance, including . . . avoiding contests between incumbent Representatives."). Id. The court does not now address whether the County has a discriminatory purpose in seeking to preserve the incumbency of those supervisors not ordinarily subject to reelection on June 8, 1993.
The County does not present nor has the court found federal legal authority for the proposition that a court-ordered plan may not shorten the terms of incumbents absent a Section 2 violation. In cases not involving Section 2 violations, federal district courts in other circuits have shortened the terms of officials elected under unconstitutional redistricting schemes. See, e.g., Wallace v. House, 377 F. Supp. 1192, 1201 (W.D. La. 1974); Swann v. Adams, 263 F. Supp. 225, 228 (S.D. Fla. 1967) (three-judge court); Keller v. Gilliam, 454 F.2d 55, 57-58 (5th Cir. 1972).
California law provides that "the term of office of any supervisor who has been elected and whose term of office has not expired shall not be affected by any change in the boundaries of the district from which he or she was elected." Cal. Elec. Code § 35006 (West 1989). Louisiana law contains similarly unequivocal language: "If reapportionment be necessary it shall be made effective at the end of the term of the incumbent officials". Chargois v. Vermilion Parish School Board, 348 F. Supp. 498, 501 (W.D. La. 1972), quoting LSA-R.S. 33:1411(b). Nonetheless, the district court in Chargois, 348 F. Supp. at 501, departed from Louisiana's clear policy objectives after noting the gross malapportionment of the districts then in place. ("Since all the current members of both bodies were elected from concededly malapportioned districts, they cannot continue to serve any longer than is absolutely necessary."). Id. While the court has not ruled on the constitutionality of the County's present districting scheme, the County concedes that the September 8, 1981 plan is malapportioned. (Tr. of June 29, 1992 at 64-65: "The 1981 plan, which we acknowledge -- call it a stipulation, if you want -- is malapportioned in the sense that, under the way the census has shown the numbers, they are not substantially equal.").
The court need not decide whether to renumber the County's districts at this juncture. The possibility remains that the County may obtain preclearance of a redistricting plan which does not shorten the terms of any incumbents. In addition, Mr. Avila might modify his plan to obviate the need for renumbering the County's districts.
VI. CONCLUSION AND DISPOSITION
The court will not now consider the H4 and H5 plans, as both raise substantial questions of coverage under Section 5 of the Voting Rights Act.
The date for the special election in those supervisorial districts which were regularly scheduled for election on November 3, 1992, is presently set for March 2, 1993. That special election date is ORDERED DEFERRED until June 8, 1993.
The County of Monterey shall undertake with all deliberate speed to obtain preclearance of a duly adopted redistricting plan, pursuant to Section 5 of the Voting Rights Act. If the County does not present the court with a precleared plan on or before February 26, 1993, the court will order an interim plan which will establish supervisorial districts for the conduct of the election now scheduled for June 8, 1993.
On the basis of the evidence now before it, if the adoption of an interim plan becomes necessary, the court would be inclined to adopt the Plaintiffs' Exhibit 30, the plan dated September 4, 1992, submitted by Joaquin Avila, Esq., subject to modification in some particulars.
The parties are advised that the court will not consider further delays of the election at this juncture.
DATED: December 8, 1992
WILLIAM A. INGRAM
United States District Judge