United States District Court, S.D. California
William Q. Hayes, United States District Court.
matters before the Court are the motion for a preliminary
injunction filed by Plaintiff Don Higginson (ECF No. 11); the
motion to intervene filed by California League of United
Latin American Citizens, Jacqueline Contreras, Xavier Flores,
Judy Ki, and Hiram Soto (ECF No. 18); the motion to dismiss
filed by Defendant Xavier Becerra (ECF No. 33); and the
motion for leave to file amici curiae brief of the San
Gabriel Valley Council of Governments, et al. (ECF No. 53).
October 4, 2017, Plaintiff Don Higginson initiated this
action by filing the Complaint against Defendants Attorney
General Xavier Becerra (the “Attorney General”)
and the City of Poway (the “City”). (ECF No. 1).
Higginson alleges a cause of action pursuant to 42 U.S.C.
§§ 1983 and 1988 for a violation of his rights
under the Fourteenth Amendment. Higginson asserts that the
California Voting Rights Act (“CVRA”) and the
City's Map 133, allegedly enacted as a result of the
CVRA, violate the equal protection clause. Higginson seeks an
order declaring the CVRA and Map 133 unconstitutional and
enjoining their enforcement and use.
October 19, 2017, Higginson filed a motion for a preliminary
injunction. (ECF No. 11). Higginson seeks a preliminary
injunction pursuant to Federal Rule of Civil Procedure 65(a)
which temporarily enjoins “Defendant Attorney General
Xavier Becerra and his agents from enforcing the California
Voting Rights Act and Defendant City of Poway from using Map
133 for elections during the pendency of this action.”
Id. at 2.
November 6, 2017, the City filed a response to the motion for
a preliminary injunction stating that it takes a neutral
position in this litigation and “does not intend to
defend the constitutionality of the CVRA or otherwise
actively support or oppose the Motion.” (ECF No. 16 at
2). The City states that “unless and until this (or
any) Court orders otherwise, the City will continue
implementing by-district elections pursuant to the Ordinance,
which means that the City will begin the transition to the
election system adopted therein during the November 2018
election.” Id. at 2. The City requests that
the Court make its ruling prior to May 1, 2018 to
“provide potential candidates with sufficient time to
make decisions in advance of the formal July nominations
filing period.” Id. at 3.
November 6, 2017, the California League of United Latin
American Citizens (“LULAC”), Jacqueline
Contreras, Xavier Flores, Judy Ki, and Hiram Soto (“the
Proposed Intervenors”) filed a motion to intervene and
lodged an opposition to the motion for a preliminary
injunction. (ECF Nos. 18, 19).
November 7, 2017, the Attorney General filed a response in
opposition to the motion for a preliminary injunction. The
Attorney General asserts that Higginson lacks standing and
“has not established a likelihood of success on the
merits on his Fourteenth Amendment claim” or “any
of the remaining factors . . . necessary to show he is
entitled to a preliminary injunction.” (ECF No. 22).
November 22, 2017, the Attorney General filed a motion to
dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6). The Attorney General asserts
that Higginson lacks Article III standing to bring this
action and that Higginson fails to state a claim upon which
relief can be granted. (ECF No. 33). On December 12, 2017,
Higginson filed a response in opposition. (ECF No. 48). On
December 12, 2017, the City filed a response stating that the
City intends to maintain a “neutral position in this
action” and “will not support or oppose”
the motion to dismiss. (ECF No. 47 at 2).
December 14, 2017, the City of Mission Viejo filed a motion
for leave to file an amicus curiae brief in support of the
motion for a preliminary injunction. (ECF No. 49). On
December 18, 2017, the Court granted the motion and deemed
the Mission Viejo amicus curiae brief to be filed. (ECF No.
December 18, 2017, the San Gabriel Valley Council of
Governments, the City of Arcadia, the City of Barstow, the
City of Fullerton, the City of Glendora, the City of South
Pasadena, and the City of West Covina filed an application
for leave to file an amicus curiae brief in support of the
motion for a preliminary injunction. (ECF No. 53).
January 5, 2018, the Attorney General filed a motion for
leave to file a response to the amicus curiae brief filed by
the City of Mission Viejo. (ECF No. 59). On January 9, 2018,
the Court granted the motion and allowed the City of Mission
Viejo to file a response. (ECF No. 62). On January 10, 2018,
the Attorney General filed a response to the amicus curiae
brief filed by the City of Mission Viejo. (ECF No. 63).
January 12, 2018, the Court heard oral argument on the motion
for a preliminary injunction.
ALLEGATIONS OF THE COMPLAINT
City is a “California general law city and a municipal
corporation organized and existing under and by virtue of the
laws of the State of California.” (ECF No. 1 at ¶
12). The City is subject to the CVRA. Id. “As
a direct result of that statute, the City has abandoned its
at-large voting system and switched to by-district elections
that are the product of racial gerrymandering.”
City has used an at-large voting system to elect its City
Council for decades. Id. ¶ 31. “On June
7, 2017, the City received a certified letter from an
attorney, Kevin Shenkman, asserting that the City's
at-large system violates the CVRA.” Id. ¶
32. “According to Mr. Shenkman, ‘Poway's
at-large system dilutes the ability of Latinos (a
‘protected class') to elect candidates of their
choice or otherwise influence the outcome of Poway's
council elections.' Therefore, unless the City
‘voluntarily change[s] its at-large system of electing
council members . . . [he] will be forced to seek judicial
relief.'” Id. ¶ 34. “Mr.
Shenkman gave the City until June 21, 2017 to notify him
whether it would come into compliance with the
June 20, 2017, in response to the Shenkman letter, the City
Council held a closed session to discuss the threatened CVRA
litigation.” Id. ¶ 35. “[T]he City
Council provided direction to staff to prepare a resolution
of intention for establishing and implementing by-district
elections for the City Council members to be presented for
consideration at the July 18, 2017 City Council
In recommending the adoption of the resolution ahead of the
July 18 meeting, the City Attorney explained that “the
risks and costs associated with protracted CVRA
litigation-particularly in light of results in all other
cities that have fought to retain at large voting-cannot be
ignored. The public interest may ultimately be better served
by a by-district electoral system if converting to that
system avoids significant attorneys' fees and cost
Id. ¶ 36. “At the City Council meeting on
July 18, an outside attorney the City hired to advise it on
the Shenkman letter outlined the difficulty in defending CVRA
lawsuits.” Id. ¶ 37. “Each member
of the City Council . . . expressed his strong disapproval of
the changes that the CVRA was forcing the City to
make.” Id. ¶ 41. “City
councilmember Jim Cunningham explained that ‘the
[safe-harbor provision] is truly the shield … we are
using to avoid attorney's fees, and costs, and protracted
litigation.' He then specifically sought advice from the
outside attorney on whether they were utilizing that
provision correctly to avoid those burdens.”
Id. ¶ 42.
City councilmember John Mullin . . . concluded:
“We've gone through denial, and we've gone
through anger, and now we're into acceptance. So, to
those of you in the audience who think we should be fighting
this, we concur, we were there awhile back as well. I have no
illusions that this will lead to better government for our
Id. ¶ 44. “Deputy Mayor Barry Leonard . .
. explained his view that . . . ‘We don't pick
certain people in certain neighborhoods and say we'll
treat them any differently. There is no evidence of that
whatsoever.'” Id. ¶ 45.
Mayor Steve Vaus concluded, “I'll just echo that
this council does a remarkable job [with at-large elections]
. . . But we've got to do what we've got to do. And
job one is to protect the treasure of our constituents. And
it's their money we'd be putting at risk [with
litigation] and none of us are willing to do that.”
Id. ¶ 46.
The City Council adopted Resolution No. 17-046 setting forth
its intention to transition from at-large to by-district
elections, pursuant to Elections Code section 10010(e)(3)(A).
The Resolution stated that after “the City [had]
received a letter threatening action under the California
Voting Rights Act, ” it had “determined that it
is in the best interest of the City to move from its current
at-large electoral system to a by-district election for
members of the City Council, in furtherance of the purposes
of [the] California Voting Rights Act.”
Id. ¶ 47 (first alteration in original).
“On August 31, 2017, the Council voted 5-0 to proceed
with Map 133, an election plan that divides the City into
four districts.” Id. ¶ 49. “On
October 3, 2017, the Council adopted the ordinance enacting
Map 133.” Id. ¶ 51. “The City would
not have switched from at-large elections to single-district
elections but for the prospect of liability under the
CVRA.” Id. ¶ 52. “City elections
using these new districts will be held in 2018.”
Id. ¶ 6.
is a resident of Poway, California and a registered voter.
Id. ¶ 10. “Because the California Voting
Rights Act has forced the City to abandon at-large elections,
he will now reside in and vote in District 2.”
Id. “District 2, like all of the City's
districts, is racially gerrymandered as a result of the
redistricting the California Voting Rights Act has imposed on
the City.” Id.
CVRA makes race the predominant factor in drawing electoral
districts. Indeed, it makes race the only factor given that a
political subdivision, such as the City, must abandon its
at-large system based on the existence of racially polarized
voting and nothing more.” Id. ¶ 56.
“California does not have a compelling interest in
requiring any political subdivision, including the City, to
abandon its at-large system based on the existence of
racially polarized voting and nothing more.”
Id. ¶ 57. “The CVRA also is not narrowly
tailored to ensure that minority voters do not have their
votes diluted because, among other reasons, it overrides the
compactness precondition of Section 2 of the [federal Voting
Rights Act].” Id. ¶ 58. “[T]he CVRA
violates the Equal Protection Clause of the Fourteenth
Amendment.” Id. ¶ 59.
requests the following relief from the Court:
62. Declare that the California Voting Rights Act requires
California political subdivisions, such as the City, to
engage in racial gerrymandering in violation of the Equal