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Luna v. County of Kern

United States District Court, E.D. California

November 21, 2017

OSCAR LUNA, ALICIA PUENTES, DOROTHY VELASQUEZ, and GARY RODRIGUEZ, Plaintiff,
v.
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.

          FINAL PRETRIAL ORDER

         On October 16, 2017, the court conducted a final pretrial conference. Attorneys Denise Hulett and Tanya G. Pellegrini appeared on behalf of plaintiffs. Attorneys Marguerite Leoni and Christopher Skinnell appeared on behalf of defendants. Having considered the parties' joint pretrial statement and the views of counsel, the court now issues this final pretrial order.

         Plaintiffs filed this action under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, on April 14, 2016. Plaintiffs allege that the 2011 redistricting plan of the Kern County Board of Supervisors dilutes the voting strength of Latino voters by depriving them of a second district in which they could constitute a majority of the eligible voters and from which they could elect a candidate of their choice. Defendants deny that the 2011 redistricting plan of the Kern County Board of Supervisors violates Section 2 as interpreted by the United States Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986), and its progeny. Defendants have also asserted affirmative defenses, including laches and lack of ripeness. Finally, defendants contend that no supervisorial map can be drawn in Kern County that would have two majority Latino citizen voting age population districts without subordinating traditional districting considerations to racial ones in violation of Equal Protection.

         I. JURISDICTION/VENUE

         Jurisdiction with respect to plaintiffs' § 2 claim is predicated on 28 U.S.C. §§ 1331 and 1343. Jurisdiction over plaintiffs' claim for attorneys' fees, costs, expert witness fees, and associated costs and related non-taxable costs is based on 52 U.S.C § 10310(e) and 28 U.S.C. § 1920. Jurisdiction is not contested.

         Venue is proper pursuant to 28 U.S.C. § 1391(b) because relevant and substantial acts occurred and will continue to occur within the Eastern District of California. Venue is not contested.

         II. JURY

         Both parties have requested a bench trial.

         III. UNDISPUTED FACTS

         1. The events that are the subject of this lawsuit occurred in Kern County.

         2. Plaintiffs Oscar Luna, Alicia Puentes, Dorothy Velasquez, and Gary Rodriguez are Latino U.S. citizens and registered voters of Kern County who challenge the configuration of the current plan for election of members of the Kern County Board of Supervisors (the “Board of Supervisors” or the “Board”).

         3. All of the plaintiffs reside either in 2011 Supervisorial District 1 or 4.

         4. Kern County is a political and geographical subdivision of the State of California established under the laws of the State of California, operating under the laws of the State of California and created for the provision of government services.

         5. The Kern County Board of Supervisors is the County's legislative body and is responsible for establishing county policies and the overall administration of the Kern County government.

         6. Defendants Mick Gleason, Zack Scrivner, Mike Maggard, David Couch, and Leticia Perez are members of the Board of Supervisors of defendant Kern County. Each supervisor is sued in his or her official capacity.

         7. From 2009 to February 2017, John Nilon was the County Administrative Officer for defendant Kern County and was responsible for enforcing the rules, regulations, and policies and ordinances enacted by defendant Board of Supervisors, and was responsible for supervising the redistricting map options and public workshops during the 2011 redistricting process undertaken by the defendant Board of Supervisors. Mr. Nilon is sued in his official capacity.

         8. Defendant Mary B. Bedard is the Registrar of Voters for Kern County, responsible for conducting county elections in Kern County. Defendant Bedard is sued in her official capacity.

         9. According to the 2010 United States Census, Kern County had a total population of 839, 631 of whom approximately 49% were of Hispanic/Latino origin, 4% were Asian, and 5% were African American.

         10. The U.S. Census Bureau's American Community Survey (“ACS”) 1-year estimate concludes that in 2010, Kern County had a total citizen-voting age population (“CVAP”) of 476, 399 of whom an estimated 34% were Latino.

         11. According to the 2000 United States Census, Kern County had a total population of 661, 645 persons of whom 38% were of Hispanic/Latino origin.

         12. Kern County is divided into five supervisorial districts.

         13. Latinos comprise more than half of the CVAP in the current District 5.

         14. Latinos do not comprise more than half the CVAP in any other current supervisorial district.

         15. Both of the Latino majority districts in the Thornburg v. Gingles, 478 U.S. 30 (1986), prong one illustrative maps one[1] and two submitted by plaintiffs are estimated to have a higher Latino share of eligible voters than the single majority district in the map adopted by the Board of Supervisors in 2011. This is true whether measured by the 2010-2014 five-year ACS CVAP Tabulation or by the 2005-2009 Tabulation, which was the most recent that was available at the time the current districts were adopted.

         16. Defendant Kern County is required to redistrict its five supervisorial districts every 10 years in order to comply with applicable state and federal laws.

         17. Defendant Kern County redistricted its five supervisorial districts in 1981.

         18. Defendant Kern County redistricted its five supervisorial districts in 1991, at which time the County created a majority Latino CVAP district, District 5.

         19. In 1991, Mr. Nilon was employed by the County of Kern in the Office of the County Administrator, and was responsible for developing the redistricting map options and conducting the public workshops during the 1991 redistricting process undertaken by defendant Board of Supervisors.

         20. In 2001, the Board of Supervisors redistricted the County's supervisorial districts, which preserved the majority Latino CVAP district created in 1991, District 5.

         21. During the 2001 redistricting process, Assemblyman Dean Florez proposed a districting plan including a westside district including Delano, McFarland, Wasco, Shafter, Lost Hills, Buttonwillow, Taft, and Maricopa.

         22. During the 2011 redistricting, participants at the Shafter workshop supported a westside district including Delano, McFarland, Wasco, Shafter, Lost Hills, Buttonwillow, Taft/Maricopa, and Frazier Park/Lebec/Pine Mountain Club, in a draft plan called Option 5.

         23. During the 2011 redistricting, at the August 2, 2011 public hearing, Steven Ochoa of MALDEF presented a redistricting map that included two districts with a majority of Latino eligible voters. Plaintiffs have stipulated that:

(a) the 2011 MALDEF proposed map included federal and state prisoners in the population base;
(b) the Board of Supervisors adopted a policy of excluding prisoners from the population base, in accordance with a 1991 opinion of the California Attorney General; and
(c) plaintiffs will not contend in this lawsuit that adoption of such a policy by the Board of Supervisors was improper.

         24. Plaintiffs have also stipulated that they will not rely on the supervisorial redistricting map presented by Mr. Ochoa at the August 2, 2011, Board of Supervisors meeting:

(a) to support any contention that the first Gingles precondition (that Latinos in Kern County are “sufficiently numerous and compact to form a majority in a [second] single-member district”) is met in this case;
(b) as a possible remedy, should liability be found in this case; or
(c) to support any claim that the Board of Supervisors acted with a discriminatory purpose during the 2011 redistricting process.

         25. John Nilon, as the County Administrative Officer, provided staff support to the Board of Supervisors, and the County Administrative Office staff was responsible for public outreach and the public workshops conducted in connection with the 2011 redistricting process and for providing information, including redistricting plan options, to the Board of Supervisors.

         26. County staff conducted between 15 and 20 public “workshops” in 2011 regarding redistricting. There are no formal minutes of the discussions that took place at those workshops. Contemporaneous notes of the discussions that took place have not been located.

         27. Plaintiffs Velasquez, Luna, and Puentes did not attended any of the public “workshops.”

         28. Plaintiff Rodriguez attended the public “workshop” in Shafter.

         29. In July and August of 2011, Kern County held a total of four formal public hearings on supervisorial redistricting - two hearings on July 5, 2011, one on August 2, 2011, and one on August 9, 2011.

         30. None of the plaintiffs attended any of the four public hearings or sent any communication to the Board of Supervisors or County staff regarding the redistricting.

         31. The July 5, 2011 staff reports provided to each member of the Board of Supervisor members in connection with the public hearings on that date contained a “Summary of County Supervisorial Redistricting Workshops, May 17 - June 15, 2011, ” and the August 2, 2011 staff report provided to each member of the Board of Supervisors in connection with the public hearing on that date contained a “Public Workshops Summary.”

         32. In 2011, Kern County staff acquired publicly available American Community Survey Latino voting age citizenship data (CVAP) for Kern County from the California Statewide Database, which is the official redistricting data repository of the State of California.

         33. The 2005-2009 American Community Survey CVAP data from the California Statewide Database was in the possession of County Counsel for legal review of the 2011 redistricting options.

         34. County staff was unable to merge the CVAP data from the American Community Survey with the data from the 2010 Census on the computer program used for the redistricting, and therefore could not provide attendees of the County's public redistricting workshops in 2011 with CVAP data from the American Community Survey.

         35. Since at least 1981, all Kern County supervisorial redistricting plans have had two supervisorial districts in east Kern County, Districts 1 and 2.

         36. Since at least 1981, all Kern County supervisorial redistricting plans have had one district in west Kern County, District 4, including the communities of Wasco, Lost Hills, Buttonwillow, Taft, and Maricopa, among others.

         37. Since 1991, all Kern County supervisorial redistricting plans have included a district uniting the south eastern part of Bakersfield with the community of Lamont and the City of Arvin to the immediate south of the City of Bakersfield.

         38. Under the 1981 redistricting plan, the City of Arvin and the Community of Lamont were in District 2. Wasco was in District 4 and Delano was in District 1.

         39. Since at least 1981, all Kern County supervisorial redistricting plans have divided the community of Oildale between Districts 1 and 3.

         40. Since at least 1981, all Kern County supervisorial redistricting plans have placed Delano, McFarland, and Shafter in District 1, along with the City of Ridgecrest.

         41. Elections for Board of Supervisors are non-partisan.

         42. As required by California Elections Code §§ 1300 and 8140-8141, elections by-district to the Board of Supervisors require a majority vote. If no candidate receives a majority of the votes in a district, the two candidates receiving the most votes in the election proceed to a run-off election.

         43. There are no official barriers to Latinos registering to vote, casting a ballot, or running for office in Kern County on account of race or national origin, except that plaintiffs contend that a dilutive electoral system does itself present a barrier to Latinos registering to vote, casting a ballot, or running for office.

         44. There is currently no candidate slating process in Kern County.

         45. Regular elections for the Kern County Board of Supervisors are held in even-numbered years.

         46. Since 1994, a total of six (6) Latinos have run for election to the Kern County Board of Supervisors, of which 4 Latinos have been elected and re-elected to the Kern County Board of Supervisors - Leticia Perez in 2012, re-elected in 2016 (District 5); Pete Parra in 1996, re-elected in 2000 (District 5); Michael Rubio in 2004, re-elected in 2008 (District 5); and Steve Perez in 1994, re-elected in 1998 (District 2).

         47. The ecological regression method of analysis, and the newer ecological inference method are two techniques for estimating racially polarized voting that have been accepted by some federal courts where estimates were found to be reliable. But see Disputed Factual Issue No. IV.5 below.

         IV. DISPUTED FACTUAL ISSUES

         1. Whether the Board of Supervisors adopted a plan that divided a large and geographically compact Latino community of eligible voters between District 1 and District 4 where a second Latino eligible voter citizen voting age majority district could have been drawn in 2011 in accordance with standards set forth in Thornburg v. Gingles, 478 U.S. 30 (1986), and LULAC v. Perry, 548 U.S. 399 (2006).

         2. Whether Latinos are sufficiently geographically compact to constitute the majority of the citizen voting age population in two of five Supervisorial districts, including all the issues pertaining thereto as briefed by the parties in connection with plaintiffs' motion for partial summary judgment. (See Doc. Nos. 39, 41, 57.)

         3. Whether Latino voters in Kern County vote cohesively in local and statewide elections.

         4. Whether Anglo voters usually vote sufficiently as a bloc to defeat Latino voters' preferred candidates in local and statewide elections.

         5. Whether ecological regression and ecological inference are capable of producing reliable estimates of voting behavior in Kern County.

         6. Whether the 2011 Districting plan for the Board of Supervisors denies Latinos an equal opportunity to participate in the political processes and to elect candidates of choice.

         7. The extent of any history of official discrimination in Kern County affecting the right of Latinos to register, vote, or participate in the democratic process.

         8. The extent to which Kern County has used voting practices or procedures that may enhance the opportunity for discrimination against Latino voters.

         9. The extent to which Latinos in Kern County bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process.

         10. The extent to which Latinos have been elected to public office in Kern County.

         11. Whether there is, and has historically been, a lack of responsiveness on the part of County Supervisors to the particularized needs of the Latino residents of Kern County.

         12. Whether the policies underlying the adoption of the 2011 Supervisorial Plan are tenuous.

         13. Whether the number of districts in which Latinos form the majority of the citizens of voting age is roughly proportional to its share of the population in Kern County as per League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 426 (2006) (LULAC), and Johnson v. De Grandy, 512 U.S. 997, 1000 (1994), and if so, whether that consideration would not “overcome the other evidence of vote dilution for Latinos” in Kern County. LULAC, 548 U.S. at 438.

         14. Whether illustrative map two also has a higher share of eligible voters than the single majority district in the map adopted by the Board of Supervisors in 2011.

         15. Whether since at least 1991, all Kern County supervisorial redistricting plans have placed incorporated and unincorporated East Bakersfield ...


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