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Higginson v. Becerra

United States District Court, S.D. California

February 23, 2018

DON HIGGINSON, Plaintiff,
v.
XAVIER BECERRA, in his official capacity as ATTORNEY GENERAL OF CALIFORNIA; and CITY OF POWAY, CALIFORNIA, Defendants.

          ORDER

          Hon. William Q. Hayes, United States District Court.

         The 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).

         I. BACKGROUND

         On 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.

         On 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.

         On 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.

         On 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).

         On 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).

         On 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).

         On 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. 51).

         On 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).

         On 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).

         On January 12, 2018, the Court heard oral argument on the motion for a preliminary injunction.

         II. ALLEGATIONS OF THE COMPLAINT

         The 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.” Id.

         The 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 CVRA.Id.

         “On 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 meeting.” Id.

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 award.”

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 city.”

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.

         Higginson 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.

         “The 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.

         Higginson 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 ...

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