United States District Court, E.D. California
OSCAR LUNA, ALICIA PUENTES, DOROTHY VELASQUEZ, and GARY RODRIGUEZ, Plaintiff,
COUNTY OF KERN; KERN COUNTY BOARD OF SUPERVISORS; MICK GLEASON, ZACK SCRIVNER, MIKE MAGGARD, DAVID COUCH, and LETICIA PEREZ, in their official capacities as members of the Kern County Board of Supervisors; JOHN NILON, in his official capacity as Kern County Administrative Officer; and MARY B. BEDARD, in her official capacity as Kern County Registrar of Voters, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT (DOC. NO. 39)
matter comes before the court on plaintiffs' motion for
partial summary judgment. A hearing on the motion was held on
May 2, 2017. Attorneys Denise Hulett and Matthew Barragan
appeared on behalf of plaintiffs. Attorneys Marguerite Leoni
and Christopher Skinnell appeared on behalf of defendants.
Having considered the parties' briefs and oral arguments
and for the reasons set forth below, the court will deny
plaintiffs' motion for partial summary judgment.
ten years, following each decennial census and in accordance
with state and federal law, Kern County
(“County”) must redraw single-member electoral
districts for its five-member Board of Supervisors. (JSUF
¶ 14.) In 2011, the County conducted a number of public
workshops and held four formal public hearings, before
adopting a new redistricting plan based in part on recently
released census data. (See JSUF ¶¶ 15-20.)
The resulting supervisorial district map (the “Adopted
Map”) largely maintains the one preexisting
majority-Latino supervisorial district in Kern
County-District 5-where Latinos constitute a majority of that
district's total citizen voting age population
(“CVAP”). (See JSUF ¶¶ 12-13;
Declaration of Denise Hulett (Doc. Nos. 39-5) (“Hulett
Decl.”), Ex. 1.)
decade preceding the 2011 redistricting plan, however, Kern
County experienced significant population growth,
particularly among its Latino population. According to the
2010 U.S. Census, the total population in Kern County grew
from 661, 645 to 839, 631 persons over the prior ten years.
(JSUF ¶¶ 8, 10.) Over that same period of time, the
Latino population grew significantly-from 38 percent to 49
percent of the total population-representing most of the
County's overall population growth. (Id.)
Similarly, among CVAP in Kern County, the Latino population
grew from 25 percent to 34 percent. (See Compl.
¶¶ 16-17; JSUF ¶ 9.)
Latino citizens and registered voters in Kern County,
commenced this action on April 22, 2016, seeking to enjoin
the County's 2011 redistricting plan. (Compl.; see
also JSUF ¶ 2.) In particular, plaintiffs allege
that due to the growth and geographic distribution of the
Latino population in Kern County, it is possible to draw a
second majority-Latino supervisorial district. Plaintiffs
also allege that racially polarized voting persists in County
supervisorial elections. As a result, plaintiffs claim, the
2011 redistricting plan violates Section 2 of the Voting
Rights Act because it impermissibly dilutes the Latino vote
in Kern County. (See Compl. ¶ 41.)
discovery, plaintiffs have brought a motion for partial
summary judgment with respect to the first precondition for
establishing liability under § 2, as announced in
Thornburg v. Gingles, 478 U.S. 30, 50 (1986). (Doc.
No. 39.) Specifically, plaintiffs seek a determination that
no genuine issue of material fact exists as to whether the
Latino population in Kern County is sufficiently large and
geographically compact to constitute a majorities of voters
in each of two supervisorial districts. On April 18, 2017,
defendants filed their opposition to the motion. (Doc. No.
41.) On April 25 2017, plaintiffs filed their reply. (Doc.
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In a motion for summary judgment, the
moving party “initially bears the burden of proving the
absence of a genuine issue of material fact.” In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). The moving party may accomplish this by
“citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
or by showing that such materials “do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). Where the party
moving for summary judgment will bear the burden of proof at
trial, as is the case here, that party must come forward with
evidence that would entitle it to a directed verdict if the
evidence were uncontroverted at trial. Houghton v.
South, 965 F.2d 1532, 1536 (9th Cir. 1992); see also
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984
(9th Cir. 2007) (“Where the moving party will have the
burden of proof on an issue at trial, the movant must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party.”)
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). In attempting to establish the
existence of this factual dispute, the opposing party may not
rely upon the allegations or denials of its pleadings but is
required to tender evidence of specific facts in the form of
affidavits or admissible discovery material in support of its
contention that the dispute exists. See Fed. R. Civ.
P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11;
Orr v. Bank of America, NT & SA, 285 F.3d 764,
773 (9th Cir. 2002) (“A trial court can only consider
admissible evidence in ruling on a motion for summary
judgment.”). The opposing party must demonstrate that
the fact in contention is material, i.e., a fact that might
affect the outcome of the suit under the governing law,
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987), and that the dispute is genuine, i.e., the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. See Anderson, 477 U.S. at 250;
Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436
(9th Cir. 1987).
evaluating the evidence to determine whether there is a
genuine issue of fact, ” the court draws “all
inferences supported by the evidence in favor of the
non-moving party.” Walls v. Central Costa Cty.
Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is
the opposing party's obligation to produce a factual
predicate from which the inference may be drawn. See
Richards v. Nielsen Freight Lines, 602 F.Supp. 1224,
1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898,
902 (9th Cir. 1987). Finally, to demonstrate a genuine issue,
the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts. .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted).
Section 2 Overview
2 of the Voting Rights Act of 1965 prohibits states or their
political subdivisions from enacting voting standards,
practices, and procedures “which result in a denial
or abridgement of the right of any citizen of the United
States to vote on account of race or color.” 52 U.S.C.
§ 10301(a). A violation of § 2 is established if,
“based on the totality of circumstances, ” the
challenged electoral process is “not equally open to
participation by members of a [racial minority group] in that
its members have less opportunity than other members of the
electorate to participate in the political process and to
elect representatives of their choice.” 52 U.S.C.
§ 10301(b). “The essence of a § 2 claim is
that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by [minority] and
[majority] voters to elect their preferred
representatives.” Thornburg v. Gingles, 478
U.S. 30, 47 (1986); see also Allen v. State Bd. of
Elections, 393 U.S. 544, 566-67 (1969) (the language
“voting qualifications or prerequisite to voting, or
standard, practice, or procedure” was employed in
§ 2 in order to be “all-inclusive of any kind of
practice” that might be used to deny citizens the right
Congressional enactment of § 2, the Supreme Court
articulated a two-step inquiry for analyzing vote dilution
claims. First, a minority group of voters challenging a
particular election system must demonstrate three
prerequisites: (1) the minority group is sufficiently large
and geographically compact to constitute a majority in a
single-member district, (2) the minority group is politically
cohesive, and (3) the majority group votes sufficiently as a
bloc to enable it, in the absence of special circumstances,
“usually to defeat the minority's preferred
candidate.” Gingles, 478 U.S. at 50-51;
accord Cooper v. Harris, 581 U.S. ___, ___, No.
15-1262, 2017 WL 2216930, at *12 (May 22, 2017). Second,
after determining that these threshold conditions are met,
the court must determine whether, “based on the
totality of circumstances, ” the challenged electoral
process impermissibly impairs the minority group's
ability to elect representatives of its choice.
Gingles, 478 U.S. at 44-45; see also Ruiz v.
City of Santa Maria, 160 F.3d 543, 550 (9th Cir. 1998)
(adopting the Gingles two-step
analysis). While Gingles involved
multi-member districts which send two or more members to a
legislative chamber, the Supreme Court has since applied the
same framework to cases involving single-member districts,
where the challenged practice is the manipulation of district
lines. See Voinovich, 507 U.S. at 157-58 (citing
Growe v. Emison, 507 U.S. 25, 40-41 (1993)); see
also Bartlett v. Strickland, 556 U.S. 1, 11
(2009); Old Person v. Brown, 312 F.3d 1036, 1040-42
(9th Cir. 2002).
The First Gingles Precondition
move for partial summary judgment only with respect to the
first Gingles precondition, which in this case
requires a showing that the Latino voting population in Kern
County is both sufficiently large and geographically compact
to constitute a numerical majority in a second single-member