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Luna v. County of Kern

United States District Court, E.D. California

February 23, 2018

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.


         On April 22, 2016, plaintiffs, who are Latino[1] citizens and registered voters in Kern County, commenced this action against the County of Kern, its Board of Supervisors, and other County officials (collectively, “defendants”), challenging Kern County's 2011 redistricting plan under § 2 of the Voting Rights Act, 42 U.S.C. § 1973. Plaintiffs allege that the County's 2011 redistricting plan impermissibly dilutes the Latino vote in Kern County and thereby denies Latinos the opportunity to elect representatives of their choice. After the court denied plaintiffs' motion for partial summary judgment (Doc. No. 79), the action proceeded to an eleven-day bench trial, which concluded on December 19, 2017.

         At trial, plaintiffs offered the testimony of three experts.[2] David Ely, plaintiffs' demography expert, testified that a second majority-Latino supervisorial district in Kern County could have been created in 2011. Dr. Morgan Kousser, plaintiffs' statistical expert, testified regarding the presence of racially polarized voting in Kern County. Finally, Dr. Albert Camarillo, plaintiffs' expert historian, testified about the history of discrimination against Latinos in Kern County and throughout the state of California. In addition, plaintiffs offered the testimony of Dorothy Velazquez, Gary Rodriguez, Dolores Huerta, Sam Ramirez, Leticia Perez, and Allan Krauter. Ms. Velazquez and Mr. Rodriguez are plaintiffs in this action and Latino registered voters of Kern County. Ms. Huerta is a renowned civil rights and labor activist, and a long-time Kern County resident. Mr. Ramirez is a former candidate for Kern County Board of Supervisors representing District 2, and Supervisor Perez is currently on the Board of Supervisors representing District 5, the sole majority-Latino district in Kern County. Mr. Krauter, who was called by plaintiffs as an adverse witness, was a legislative analyst in the Kern County Administrative Office (“CAO”) at the time of the 2011 redistricting and was primarily responsible for assimilating input, creating the redistricting map options for the Board's consideration, and making recommendations concerning which map should be adopted.

         At trial, defendants also offered the testimony of three experts. In their testimony, demographer Dr. Douglas Johnson and the County's Planning & Natural Resources Department director Lorelei Oviatt rebutted the feasibility of creating a second majority-Latino supervisorial district in Kern County that would also maintain communities of interest. Defendants' statistical expert Dr. Jonathan Katz testified in rebuttal to plaintiffs' evidence of racially polarized voting in Kern County. Defendants also offered the testimony of Allan Krauter, John Nilon, Michael Gleason, Zack Scrivner, William Maggard, Jonathan McQuiston, Raymond Watson, Alan Christensen, Kimberly Salas, Teresa Hitchcock, and Karen Rhea. Mr. Nilon was the head of the CAO at the time of the 2011 redistricting, overseeing the work of Mr. Krauter. Mr. Gleason, Mr. Scrivner, and Mr. Maggard are all current members of the Kern County Board of Supervisors, representing Districts 1, 2, and 3, respectively. Mr. McQuiston is a former District 1 Supervisor, and Mr. Watson is a former District 4 Supervisor. Mr. Christensen, Ms. Salas, Ms. Hitchcock, and Ms. Rhea are all Kern County employees. Mr. Christensen is currently the Chief Deputy County Administrative Officer, while Ms. Salas works for the Migrant Education Program with the Kern County Superintendent of Schools. Ms. Hitchcock is employed with the Employers' Training Resource Department, and Ms. Rhea works with the Elections Division.

         Over the course of the eleven-day trial, the court heard from the roughly two dozen witnesses listed above and admitted over 150 exhibits. The parties submitted post-trial briefs on January 8, 2018. (Doc. Nos. 185, 186.) The court has given full consideration to all the evidence before it. However, the court will not address every witness or every piece of evidence below because resolution of the issues presented in this case simply does not require it. Having considered the testimonial evidence and exhibits, the briefs of the parties, and the applicable law, the court sets forth the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).


         Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose of eliminating racial discrimination in voting. Chisom v. Roemer, 501 U.S. 380, 403 (1991) (citing South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966)); Farrakhan v. Gregoire, 623 F.3d 990, 995 (9th Cir. 2010) (Thomas, J., concurring). Section 2 of the Voting Rights Act of 1965 was enacted “to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall ‘be denied or abridged . . . on account of race, color, or previous condition of servitude.'” Voinovich v. Quilter, 507 U.S. 146, 152 (1993); see also Chisom, 501 U.S. at 404 (recognizing that Congress's express objective in amending § 2 was to “broaden the protection afforded by the Voting Rights Act”). Section 2 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).[3] “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 (holding 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 to vote).

         Following 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, ___ U.S.___, 137 S.Ct. 1455, 1470 (2017).

         Where these threshold conditions are met, the court must then 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 Old Person v. Cooney, 230 F.3d 1113, 1120 (9th Cir. 2000) [hereinafter Old Person I]; Ruiz v. City of Santa Maria, 160 F.3d 543, 550 (9th Cir. 1998). In assessing the totality of circumstances, the Supreme Court in Gingles identified several factors relevant to determining whether a § 2 violation has been established. These so-called “Senate factors, ” developed by the Senate Judiciary Committee, are as follows:

(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise participate in the democratic process;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals;
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:
whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

Gingles, 478 U.S. at 36-37 (citing S. Rep. No. 97-417, 2d Sess., at 28-29 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 206-07 [hereinafter “S. Rep. No. 97-417”]).

         Although Gingles involved multimember districts, the Supreme Court has held that the Gingles test applies in cases, such as this one, 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) [hereinafter Old Person II].


         Every ten years, following each decennial census conducted by the U.S. Census Bureau and in accordance with state and federal law, Kern County (the “County”) must redraw single-member electoral districts for its five-member Board of Supervisors. This case arises from the 2011 redrawing of those district boundaries. Pertinent to the analysis that follows is the manner in which the 2011 redistricting plan was adopted. Much of the evidence comes from the testimony of Allan Krauter, who at the time was a legislative analyst in the CAO. (See Trial Tr., Vol. 3, 391:19-392:11.) The County designated Mr. Krauter as the person most knowledgeable about the 2011 redistricting process, as well as the person most knowledgeable regarding use of the County's redistricting software.[4] (Id. at 392:12-393:19.)

         At trial, Mr. Krauter testified at length regarding the factors the County took into account in redrawing the supervisorial map.[5] First, since 1991, in order to comply with the Voting Rights Act, the County has maintained one majority-Latino district. (Id. at 501:18-19.) One of Mr. Krauter's goals in redrawing the County's districts in 2011 was to maintain one majority-Latino district, referred to by some County employees as the County's “Voting Rights Act district, ” which was and remains District 5. (Id.; id. at 427:19-24.) Second, Mr. Krauter considered “compactness, contiguity[, ] preservation of geographic boundaries, and other communities of interest.” (Id. at 398:20-25.) Third, Mr. Krauter attempted to maintain roughly equivalent populations across all five districts. (Id. at 398:12-16.) Fourth, Mr. Krauter and the County considered input from the community, which was expressed at workshops held across the County. (Id. at 398:8-11.)

         The 2011 redistricting process was based on the 2010 Census, which was released on March 8, 2010. (Id. at 399:20-400:5; JX 6 at 1.) Those census numbers indicated that the County had experienced a population increase of roughly 178, 000 residents from 2000 to 2010. (JX 6 at 1.) Moreover, because this population increase did not occur evenly across all five districts, district boundaries needed to be altered somewhat “to achieve relatively equal representation within the legally acceptable range.” (Id.) The 2010 Census population number included prisoners, non-citizens, and children, and also included a breakdown of the percentage of the Kern County population that was Hispanic. (Trial Tr., Vol. 3, 401:12-24, 402:9-403:5; JX 6 at 3.)

         In attempting to draw the 2011 district boundaries in accordance with the factors already discussed, Mr. Krauter employed map-drawing software known as Maptitude. (Id. at 405:2-7.) Maptitude contained the 2010 Census data, as well as the County district boundaries that had been in place since 2001. (Id. at 405:8-19.) The Maptitude program was able to distinguish between Latino and non-Latino residents, as well as between residents who were of voting age and those who were not. Notably, however, according to Mr. Krauter, the data contained in Maptitude was unable to load citizenship data available through the American Community Survey (“ACS”), an annual survey administered by the Census Bureau that collects demographic information, including age, income, education, and citizenship, from a sample of the population. (Id. at 405:20-406:21; Trial Tr., Vol. 1, 61:17-62:17.) Mr. Krauter attempted to add ACS citizenship data to Maptitude, but was ultimately unsuccessful. (Id. at 482:3-17.) For this reason, Maptitude as employed by Mr. Krauter was unable to calculate the citizen voting age population (“CVAP”) of the County or any of the supervisorial districts therein.[6] (Id. at 440:10- 16.) Instead, Mr. Krauter merely estimated that across the County, the Latino CVAP was roughly 20 percent lower than the Latino voting age population. (Id. at 440:20-441:8.) Thus, Mr. Krauter was forced to rely on these rough estimates of the Latino CVAP in each district, conceding at trial that he was unable to determine the number with precision. (Id. at 441:9-12.)

         Using Maptitude, as well as a presentation he prepared, Mr. Krauter conducted a series of public workshops in various locations across the County to solicit public input in generating various redistricting maps. (Id. at 394:25-395:6, 408:5-414:11; JX 4 at 4-5.) Use of Maptitude at these workshops allowed Mr. Krauter to instantly generate multiple permutations of potential district maps (referred to as “Options”) based upon feedback he received from those in attendance at these workshops. (Trial Tr., Vol. 3, 490:21-491:4.) In preparation for the workshops, Mr. Krauter began by creating Option 1 as a “rough draft exercise, ” which made the absolute minimum changes necessary to bring the existing supervisorial map into compliance with equal population requirements. (Id. at 444:14-18, 466:18-24; DX 504 at 3.)

         Several of these workshops were held in the eastern part of the County, and included workshops in Boron, Ridgecrest, and Inyokern. (JX 4 at 4.) At the meetings held in eastern Kern County, Mr. Krauter observed that the majority of attendees expressed support for maintaining two separate supervisorial districts in the eastern part of the County, one covering the northeastern portion and another covering the southeastern portion. (Id.; Trial Tr., Vol. 3, 409:22-410:6.) Mr. Krauter explained that Naval Air Weapons Station China Lake is located in northeastern Kern County, while Edwards Air Force Base is located in southeastern Kern County. (Trial Tr., Vol. 3, 410:2-13.) Although both are active military bases, the comments from attendees at the public workshops in eastern Kern County suggested that these bases “have different missions, ” and that the residents of the area were “fiercely devoted to their corner of Kern County.” (Id.) It was therefore generally the preference of those attending workshops in eastern Kern County to maintain two districts in the east. (Id. at 444:8-21.) Accordingly, most of the attendees at the workshops in eastern Kern County expressed support for Option 1, which maintained such a configuration with little change. (Id.; see also JX 4 at 4.)

         Mr. Krauter also conducted a public workshop in Oildale, near Bakersfield. (Trial Tr., Vol. 3, 410:14-16.) The consensus expressed at this workshop, according to Mr. Krauter, was that the Oildale residents did not want Oildale divided up between multiple districts. (Id. at 410:17-21.) They also no longer wanted to be represented by someone from Ridgecrest, located in northeast Kern, because of a belief that they received lower quality county services as a result. (Id. at 410:22-411:3.) Options 2, 3, and 4 were, therefore, all drawn by Mr. Krauter in a way that unified Oildale. (Id. at 411:4-7.)

         Mr. Krauter also conducted a workshop in Shafter, in northwestern Kern County. (JX 4 at 5.) Mr. Krauter testified that the opinions expressed there were strongly in favor of creating a “westside district” that did not include any portions of eastern Kern County. (Trial Tr., Vol. 3, 411:22-23.) This new district would, according to its proponents, include Shafter, Delano, McFarland, and Wasco. (Id. at 411:23-25.) Such a map was reflected in Option 5 created by Mr. Krauter in response to this input. (See JX 4 at 12.)

         Mr. Krauter's final public workshop was held in Bakersfield. (Id. at 5.) Opinions at this meeting were apparently more divided because some attendees supported Option 5, while others opposed it because it separated Oildale into multiple districts. (Trial Tr., Vol. 3, 412:7-25.) In response to these concerns, Mr. Krauter created Option 6, with the goal of unifying the towns of Delano, Shafter, Wasco, McFarland, Lost Hills, and Buttonwillow, while also preserving two separate districts in eastern Kern County. (Id. at 413:9-414:11; 479:1-480:2.)

         Kern County advertised the public workshops through radio, print, and television news media, including Spanish language media outlets, and also reached out to “service clubs” in outlying towns, requesting that they circulate the news release about the workshops to their members. (Id. at 463:15-464:4, 465:13-466:7.) The evidence at trial established that the public attendance at the workshops put on by County staff with respect to the 2011 redistricting process varied widely. At some workshops-such as in Inyokern, Tehachapi, East Bakersfield, Taft, and South Bakersfield-no more than two people attended. (JX 4 at 4-5.) At the workshops offered in California City, Arvin, Delano, and McFarland, no residents attended. (Trial Tr., Vol. 3, 512:24-513:25.) Other workshops saw more robust attendance, with 40 individuals attending the workshop in Mojave, located in southeastern Kern County. (JX 4 at 4-5.) Of the sixteen workshops conducted by Mr. Krauter, only 126 individuals attended in total, out of a total county population of more than 839, 000. (Id. at 4-5; JX 6 at 1.)

         Following these public workshops, Mr. Krauter participated in hearings before the Board of Supervisors, at which members of the public were permitted to discuss the Options he had developed. Initially, Mr. Krauter presented the Board with Options 1 through 5. (Trial Tr., Vol. 3, 484:22-485:2.) However, in response to “overwhelming” testimony against Option 5 at a public hearing before the Board on July 5, 2011, Option 5 was withdrawn from consideration and replaced with Option 6. (Id. at 485:3-7.) Option 6 united Delano, Shafter, Wasco, McFarland, Lost Hills, and Buttonwillow into a westside district, while still preserving two eastside districts. (Id. at 412:11-414:11.) Following the July 5, 2011 public hearing, it became clear to County Administrative Officer John Nilon that none of these options had the support of a majority of the Kern County Board of Supervisors. (Trial Tr., Vol. 7, 1078:4-24.) Accordingly, sometime following that meeting, Mr. Nilon instructed Mr. Krauter to draft an Option 7 that would be acceptable to the Board. (Id.; Trial Tr., Vol. 3, 425:22-426:2.) Pursuant to this direction, Mr. Krauter created Option 7, which was intended to modify the existing districts as little as possible, while depopulating District 4 to the extent necessary in light of anticipated population growth. (Trial Tr., Vol. 3, 437:13-22.)

         At a hearing before the Board on August 2, 2011, Steven Ochoa, the National Redistricting Coordinator for the Mexican American Legal Defense and Education Fund (“MALDEF”), proposed redistricting that would include a second majority-Latino district. (Trial Tr., Vol. 3, 485:23-486:3; JX 27 at 16-18.) Mr. Ochoa presented the Board a new map (the “MALDEF Map”) that could serve as the basis for drawing the district boundaries so as to create a second majority-Latino district. (Trial Tr., Vol. 3, 487:5-18; PX 204.) Because of these new proposals (i.e., Option 7 and the MALDEF Map), multiple attendees at the August 2, 2011 Board hearing spoke and requested that the Board delay voting on the redistricting options in order to further study the issue. (See, e.g., JX 27 at 16, 26, 27.) Nonetheless, the Board rejected the requests for further study of the newly presented options, instead voted to adopt the new Option 7 as an introduced ordinance, and slated it for formal adoption at a public hearing one week later. (JX 27 at 58-60; Trial Tr., Vol. 3, 453:19-454:9.)

         Following the August 2, 2011 hearing, and using the MALDEF proposed map as a starting point, Mr. Krauter attempted to draw a map containing a second majority-Latino district, but, after devoting five hours to the project, was ultimately unable to do so. (Trial Tr., Vol. 3, 440:3-9, 487:19-24, 489:1-7.) Mr. Krauter explained that much of his difficulty at the time was due to the fact that the MALDEF Map had included roughly 18, 000 prisoners in its calculation of equal population distribution among the five districts, while Kern County does not include prisoners in its calculations.[7] (Id. at 488:1-4.)

         After Option 7 was created by Mr. Krauter at Mr. Nilon's direction, but prior to the final vote by the Board, Kern County Counsel determined that Options 3 and 6 were not viable because those maps dropped the Latino CVAP in District 5 below 50 percent. (Id. at 428:24-429:10.) Mr. Krauter was unaware of the methodology employed by County Counsel in reaching this conclusion. (Id. at 510:25-512:1.) As described above, because Mr. Krauter could not load citizenship data into Maptitude, he was unable to confirm County Counsel's conclusions. Invoking attorney-client privilege, defendants presented no evidence at trial regarding the methodology employed by County Counsel in determining the CVAP district by district with respect to any of the options or redistricting proposals, nor any explanation as to why CVAP percentages were never provided to Mr. Krauter despite their apparent relevance to his o assignment of fashioning new district boundaries. [8]

         At a public Board hearing the following week, on August 9, 2011, members of the public in attendance again urged the Board to delay its final vote on the district boundaries. (See, e.g., JX 30 at 24, 29-31, 34, 38.) Instead, the Board voted to formally adopt Option 7 (see "Adopted Map" below), which had not been created until after the public workshops had all been held, maintained two eastern districts, and preserved the one majority-Latino district. (PX 201 at 5; JX 1.)

         (Image Omitted)

         Plaintiffs initiated this action on April 22, 2016, alleging that the redistricting plan adopted by Kern County in 2011 unlawfully fractured a second Latino voting community between two supervisorial districts. Plaintiffs argue that the 2011 redistricting plan dilutes the strength of Latino voters by depriving them of a second district in which they would constitute a majority of eligible voters and from which they could elect a candidate of their choice.

         Defendants contend that, based on population data and public testimony, Kern County was under no legal obligation in 2011 to create a second majority-Latino district. Defendants deny that a supervisorial district map could have been drawn in 2011 that created two majority-minority districts, each with a compact and politically cohesive Latino population, and which did not violate traditional redistricting criteria. Defendants further argue that this court should deny relief under well-known principles of equity, including the doctrine of laches, given that the County must redraw its districting lines in 2021 in any event in accordance with the 2020 Census. Against this background, the court will address the legal standards applicable to plaintiffs' claim as well as the court's findings based upon the evidence presented at trial.


         I. Gingles I - Latino Numerosity and Compactness

         The first Gingles precondition requires a showing that the Latino voting population in Kern County is both sufficiently large and geographically compact so as to constitute a numerical majority in a second single-member supervisorial district. See Gingles, 478 U.S. at 50; Johnson v. De Grandy, 512 U.S. 997, 1011 (1994).

         To satisfy this first Gingles precondition, a § 2 plaintiff must make a preliminary showing that it is possible to create “more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice.” De Grandy, 512 U.S. at 1008; see also Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 480 (1997) (“Because the very concept of vote dilution implies-and, indeed, necessitates-the existence of an ‘undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark ‘undiluted' voting practice.” (citing Holder v. Hall, 512 U.S. 874, 881, 950-51 (1994))); Gingles, 478 U.S. at 50 n.17 (“Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice.”). To do so, a plaintiff typically presents illustrative redistricting plans as evidence of vote dilution. See Fairley v. Hattiesburg, 584 F.3d 660, 669 (5th Cir. 2009); Magnolia Bar Ass'n v. Lee, 994 F.2d 1143, 1151 n.6 (5th Cir. 1993) (noting the first Gingles precondition “specifically contemplates the creation of hypothetical districts”). However, neither the plaintiff nor the court is bound by the precise lines drawn in these illustrative redistricting maps; at this stage, a plaintiff need only show that a remedy may be feasibly developed. See Fairley, 584 F.3d at 671 n.14 (citing Gingles, 478 U.S. at 50 n.17 and Houston v. Lafayette County, 56 F.3d 606, 611 (5th Cir. 1995) (“[I]t is sufficient that a plaintiff show that a workable plan for another minority-controlled voting district is possible; the plaintiff's plan need not be an ultimate solution.”)); Montes v. City of Yakima, 40 F.Supp.3d 1377, 1399 (E.D. Wash. 2014) (citation omitted) (“What the first Gingles precondition does not require is proof that a perfectly harmonized districting plan can be created. Indeed, conditioning a § 2 plaintiff's right to relief upon his or her ability to create a letter-perfect districting plan would put the cart before the horse.”).

         At trial, plaintiffs presented two illustrative redistricting plans developed by their demography expert, David R. Ely, and which they contend establish that a second majority-Latino supervisorial district in Kern County was clearly possible in 2011. (See “Illustrative Map 1” and “Illustrative Map 2” below; PX 103 at 2-3.) In drawing the Illustrative Maps, Mr. Ely used data from the 2010 decennial census for total population and voting age population by race and ethnicity, and data from the 2005-2009 and 2011-2014 ACS Special Tabulations for citizen voting age population. (Trial Tr., Vol. 1, 57:3-21.) Mr. Ely drew the Illustrative Maps in accordance with the traditional redistricting criteria of equal population and contiguity, with reference to underlying topography as well as state legislative and congressional districts. (Id. at 67:18-23, Trial Tr., Vol. 2, 102:5-103:21.) Although Mr. Ely did not rely upon socioeconomic data to draw the two Illustrative Maps initially, he did consult socioeconomic data after the fact to confirm that the illustrative districts reflected similar socioeconomic characteristics, including educational attainment, income, homeownership, immigration status, and Spanish language ability. (Trial Tr., Vol. 2, 132:22-133:5; PX 110.) Below, the court will address the specific characteristics of plaintiffs' two illustrative maps individually.

         A. Illustrative Map 1

         Illustrative Map 1 modifies the County's 2011 Adopted Map in three notable ways. First, it adjusts the boundaries of District 5, while still maintaining it as a majority-Latino district. Second, it combines cities in northwestern Kern County with the City of Arvin and areas immediately south of Bakersfield to create a second majority-Latino district ("Illustrative District 1"). Third, it creates a single supervisorial district combining the eastern half of Kern County with the cities of Taft and Maricopa in the southwest part of Kern County. (See PX 103 at 2; Trial Tr., Vol. 1, 81:21-84:3.)

         (Image Omitted)

         i. Numerosity

         In order to satisfy the numerosity requirement under Gingles, a plaintiff must first demonstrate "that the minority population in the potential election district is greater than 50 percent." Bartlett, 556 U.S. at 19-20. The Ninth Circuit has held that the appropriate metric by which to measure the size of the minority population is its CVAP, rather than its total population. Romero, 883 F.2d at 1425; see also Montes, 40 F.Supp.3d at 1391; Cano v. Davis, 211 F.Supp.2d 1208, 1233 (CD. Cal. 2002) ("The Ninth Circuit, along with every other circuit to consider the issue, has held that CVAP is the appropriate measure to use in determining whether an additional effective majority-minority district can be created.”) (citing Romero with approval), aff'd, 537 U.S. 1100 (2003).

         Under plaintiffs' Illustrative Map 1, and using data from the 2009 Special Tabulation- which would have been available to the County at the time of the 2011 redistricting process-Mr. Ely testified that the Latino CVAP would constitute a numerical majority in two districts, Districts 1 and 5. (Trial Tr., Vol. 1, 79:12-25; PX 106 at 2.) Specifically, Latinos would comprise 53.2 percent of the CVAP in District 1, and 54.5 percent of the CVAP in District 5. (See “Illustrative Districts” Table below.) Although defendants' demography expert Dr. Douglas Johnson produced slightly different CVAP estimates, even Dr. Johnson's estimates similarly show that Latino voting age citizens would constitute a numerical majority in Districts 1 and 5 of Illustrative Map 1. (Trial Tr., Vol. 9, 1499:24-1500:6; DX 565 at 26.) In fact, Dr. Johnson's estimates of Latino CVAP in Districts 1 and 5, using the 2009 Special Tabulation data, were marginally higher than those of Mr. Ely. (See DX 565 at 26 (estimating 57 percent Latino CVAP in District 1 and 54 percent Latino CVAP in District 5 under Illustrative Map 1).) Accordingly, the court finds that plaintiffs have satisfied the numerosity requirement with respect to Illustrative Map 1.

Illustrative Districts
Census Population
Non-Prison Pop.
% Deviation
% Latino
% White
% African American
% Asian

Voting Age Population

% Latino
% White
% African American
% Asian

Citizen Voting Age Population 2009 Special Tabulation

% Latino
% White
% African American
% Asian

2015 Special Tabulation

% Latino
% White
% African American
% Asian

         ii. Compactness

         Plaintiffs must separately demonstrate that the relevant minority population is sufficiently “geographically compact” to constitute a voting majority in a second single-member district. See Gingles, 478 U.S. at 50; see also Old Person II, 312 F.3d at 1040. In this context, “compactness” refers not to the shape of the district, but whether the minority community is sufficiently concentrated to constitute a majority of the CVAP in a single-member district. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 433 (2006) [hereinafter LULAC]. “While no precise rule has emerged governing § 2 compactness, the inquiry should take into account traditional districting principles such as maintaining communities of interest and traditional boundaries.” Id. (citations and internal quotations omitted); see also Ruiz, 160 F.3d at 558. Other “traditional districting principles” typically include population equality, contiguity, respect for political subdivisions, protection of incumbents, and preservation of preexisting majority-minority districts. See, e.g., Easley v. Cromartie, 532 U.S. 234, 239-40 (2001); Abrams v. Johnson, 521 U.S. 74, 94 (1997); Shaw v. Reno, 509 U.S. 630, 647, 651 (1993).

         a. Preservation of Communities of Interest

         At trial, Mr. Ely presented maps tending to show that Illustrative Map 1 is more effective than the County's 2011 Adopted Map in grouping into districts populations with similar socioeconomic characteristics, including educational attainment, income, homeownership, immigration status, and Spanish language ability. (Trial Tr., Vol. 2, 132:22-133:5; PX 110.)

         Plaintiffs also presented testimony at trial from various lay witnesses that Latinos in Illustrative District 1 share a historical and present-day connection to farmworker and immigrant communities. Consequently, Latinos across Illustrative District 1 face similar issues with respect to immigration (Trial Tr., Vol. 2, 233:19-234:6, 235:10-236:22 (testimony of Dolores Huerta regarding fear of deportation); id. at 261:21-263:24 (testimony of Dorothy Velazquez regarding the same)), language (id. at 234:7-235:9 (testimony of Dolores Huerta regarding an English-only resolution proposed by the Bakersfield City Council)), and educational disparities (id. at 237:23- 239:13 (testimony of Dolores Huerta regarding the “school-to-prison pipeline”); Trial Tr., Vol. 5, 793:7-794:2 (testimony of Supervisor Leticia Perez regarding the literacy, educational, and skills gap among Latino students in Kern County)). Ms. Huerta further testified that farmworkers travel seasonally between Arvin and the northwestern Kern communities based on the available crops and labor needs. (Trial Tr., Vol. 2, 240:7-16.) District 5 Supervisor Leticia Perez testified that Latinos in the northern Kern communities are indistinguishable from the Latinos in Arvin, and that these communities share the same history, origin, culture, and socioeconomic indices. (Trial Tr., Vol. 5, 795:2-796:12.)

         Plaintiffs also presented evidence of shared concerns in Illustrative District 1 with respect to economic development, air and water pollution, and environmental concerns including those surrounding the issue of hydraulic fracturing. (Trial Tr., Vol. 2, 280:8-287:10.) Supervisor Perez testified that constituents from Delano, Shafter, Arvin, and Lamont have the most in common in terms of infrastructure issues, and that constituents from those communities appear before the Board of Supervisors every budget cycle calling on Supervisor Perez and District 1 Supervisor Mick Gleason to address flooding and other infrastructure challenges in their communities. (Trial Tr., Vol. 5, 788:1-789:10.)

         Defendants' demography expert Dr. Douglas Johnson criticized the configuration of District 1 as it appears in plaintiffs' Illustrative Map 1, which “hooks” around Bakersfield to unite territory south of Bakersfield with the northern communities of Delano, Shafter, Wasco, and MacFarland. (Trial Tr., Vol. 9, 1455:1-6.) Dr. Johnson conceded on cross-examination, however, that these communities have shared the same state legislative and congressional districts since 1991, and that this is a factor that could be considered from a traditional redistricting perspective. (Id. at 1523:16-1528:14.) Indeed, the court notes that the maps of state legislative and congressional districts share the same “hook” configuration as Illustrative District 1 in plaintiffs' Illustrative Map 1 which Dr. Johnson criticized. (See PX 103 at 2; PX 116-18.) The court therefore concludes that the existence of the “hook” in District 1 of plaintiffs' Illustrative Map 1 does not, on its face, divide communities of interest, and in fact comports with the communities of interest contemplated by other district boundaries.

         The court also finds that the configuration depicted in plaintiffs' Illustrative Map 1 is distinguishable from the illustrative district rejected in LULAC, where the Supreme Court determined that a newly-drawn majority-Latino congressional district, which included a 300-mile gap between two major Latino communities, was not compact. LULAC, 548 U.S. at 432-34. In LULAC, the Supreme Court held that “the enormous geographical distance separating [two minority populations], coupled with the disparate needs and interests of these populations-not either factor alone, ” rendered that district non-compact for § 2 purposes. Id. at 435. Here, Mr. Ely testified that the distance between Arvin and Delano was roughly 55 miles, far less than the distance at issue in LULAC. (Trial Tr., Vol. 2, 164:18-165:9.) Moreover, as summarized above, several witnesses testified credibly regarding the shared communities of interest among Latinos in Arvin and northern Kern County. The court concludes that the inadequacies of the district boundaries identified in LULAC are simply not present here.

         Defendants challenge plaintiffs' representation that Illustrative Map 1 more effectively groups communities of interest. In this regard, at trial, defendants presented various witnesses who testified to the differing communities of interest grouped in plaintiffs' illustrative districts. Most notably, defendants' expert witness Lorelei Oviatt, director of the Kern County Planning & Natural Resources Department, testified at great length about communities of interest throughout each of the current supervisorial districts, including communities of interest related to oilfields, highways, public transit, commercial developments, crops, and environmental concerns. (Trial Tr., Vol. 7, 1135:1-1147:10, 1190:20-1226:7.) The court will not recount each of these communities of interest in detail. However, the overall import of Ms. Oviatt's testimony is that each Kern County supervisorial district has at least something in common with every other. This is hardly surprising in the context of a single county. Defendants argue that plaintiffs' assertion of the communities of interest reflected in District 1 of their Illustrative Map 1 are really concerns that are shared county-wide, and that plaintiffs therefore have not proven that they are entitled to their own separate district. (See Trial Tr., Vol. 11, 1795:3-8.) Yet the first Gingles precondition does not require plaintiffs to show that they are entitled to their own district because of unique communities of interest, but only that it is possible to draw an alternative map that maintains communities of interest. Even if plaintiffs were required to identify communities of interest unique to Latinos in Kern County, they have met that higher burden with evidence of shared concerns among Latinos in the areas of immigration, language, culture, and persistent socioeconomic disparities, which evidence was not rebutted by defendants. Plaintiffs are moreover not required to accommodate every conceivable community of interest in Kern County in order to draw a sufficient illustrative map that satisfies the first Gingles precondition. Certainly, the County itself did not attempt to do so in its own redistricting efforts: Mr. Krauter testified that, when drawing the map options for the 2011 redistricting process, he did not consider oilfields, commercial developments, public transit, tourism, or other local considerations aside from what residents raised at the redistricting workshops. (Trial Tr., Vol. 3, 445:7-447:23.) The court finds no logical or legal basis to impose such a requirement on plaintiffs.

         Defendants further emphasize the absence during the 2011 redistricting process of any public comment by Kern County residents requesting that Arvin be joined with the communities in northern Kern County. (See Trial Tr., Vol. 3, 483:22-25; 485:11-14.) Defendants contend that the absence of any such suggestion indicates that Arvin does not share a community of interest with the Latino communities in northern Kern County, and that plaintiffs' arguments to the contrary are simply post hoc justifications for Illustrative Map 1. This argument is unpersuasive. First, the court notes that plaintiffs presented evidence that the unification of the Latino communities proposed in Illustrative Map 1 was not invented for the purposes of this litigation. Dolores Huerta testified that there was discussion during the 2011 Lamont redistricting workshop about including Oildale or Arvin with the northern Kern communities to create a second majority-Latino district. (Trial Tr., Vol. 2, 222:12-25.) Plaintiffs also introduced evidence that, as early as 1991, the Kern County Latino Redistricting Coalition proposed a district that “would include the Delano/McFarland area, the Shafter/Wasco Area, Lost Hills, Button Willow [sic], a minor portion of East Bakersfield, Arvin and Lamont.” (JX 12 at 37-40.) In any event, the court would note that the small number of Kern County residents who attended either the public workshops or the public hearings on redistricting diminishes any significance the claimed lack of public suggestion could have.

         Second, even if there was an absence of specific public comment suggesting the precise configurations proposed in plaintiffs' Illustrative Map 1, the court rejects the notion that it is the obligation of County residents to propose where districting lines should be drawn. At the public hearings before the Board of Supervisors on August 2 and August 9, 2011, several members of the public spoke in favor of the creation of a second majority-Latino district. (See JX 27 at 16- 18, 30-32; JX 30 at 23-31, 37-38.) Simply because these citizens did not identify which specific communities should be included within the second majority-Latino district does not negate a showing of a community of interest among Latinos in Kern County, especially in light of the evidence presented by plaintiffs at trial. The court therefore finds that plaintiffs' Illustrative Map 1 preserves communities of interest.

         b. Connectedness

         One factor that Mr. Ely considered in constructing Illustrative Map 1 is what he referred to as “connectedness, ” or residents' ability to easily interact with one another. (Trial Tr., Vol. 2, 174:19-25.) Mr. Ely testified that all communities in Kern County have connections to Bakersfield, but two communities-one in northern Kern County and another in eastern Kern County-are internally connected by highways and public transit without the need to pass through Bakersfield. (Trial Tr., Vol. 1, 82:7-21.) Mr. Ely observed that the County's 2011 Adopted Map splits each of these two communities into different districts and combines each with dissimilar communities apparently in order to meet the population requirements. (PX 112 at ¶¶ 9-12.) In contrast, plaintiffs' Illustrative Map 1 keeps the northern and eastern Kern County communities intact in their own respective districts, combining each with small communities with similar shared interests. (Id. at ¶ 13.)

         As defendants' expert Dr. Johnson points out, plaintiffs' Illustrative Map 1 does separate Arvin from the nearby communities of Lamont and Weedpatch. (Trial Tr., Vol. 9, 1549:6-12; DX 558 at ¶ 52.) Mr. Ely acknowledged that Arvin is well connected to both Lamont and Weedpatch, but opined that there is, nonetheless, a sufficiently large community of interest among Latinos in Kern County to comprise the majority in two supervisorial districts. (Trial Tr., Vol. 2, 179:1-16.) Therefore, according to Mr. Ely, the boundary line separating Arvin from Lamont could be drawn in many different ways and still maintain majority-Latino CVAP in two districts.[9] (Id.) The court concludes that plaintiffs' Illustrative Map 1 respects the principle of connectedness as defined by Mr. Ely.

         c. Preservation of Kern County's Preexisting Majority-Latino District

         The parties' experts present slightly different Latino CVAP estimates for each of the supervisorial districts as they appear under plaintiffs' Illustrative Map 1. There is no dispute, however, that District 5, Kern County's preexisting majority-Latino district, remains a majority-Latino district under Illustrative Map 1, with a 54.5 percent Latino CVAP according to Mr. Ely's estimates. (See “Illustrative Districts” Table above.)

         d. Preservation of Two Eastern Districts and Minimizing Change

         Lastly, in assessing plaintiffs' showing of compactness, the court considers two additional districting principles specific to Kern County: the desire to retain two supervisorial districts in eastern Kern County and to avoid dramatic change in drawing new boundaries. Since at least 1981, the eastern half of Kern County has been represented by two supervisors. (See PX 210; PX 236; Trial Tr., Vol. 7, 1071:4-23.) Mr. Krauter testified at trial that during the 2011 redistricting process, a number of eastern Kern County residents expressed concerns that it would be extremely difficult for one supervisor to adequately represent the entirety of eastern Kern County. (Trial Tr., Vol. 3, 409:22-410:13.) Plaintiffs' Illustrative Map 1, however, creates one eastern district.

         Defendants also argue that Kern County has for decades adhered to a broader principle that new district maps should maintain the core of existing districts and minimize changes. (DX 565 at ¶ 19; Trial Tr., Vol. 9, 1466:6-1467:15.) These principles, defendants contend, help preserve relationships between elected officials and their constituents over time. (Trial Tr., Vol. 9, 1466:6-1467:15.) According to defendants' expert Dr. Johnson, plaintiffs' Illustrative Map 1 would move 42 percent of Kern residents into new supervisorial districts. (Id. at 1462:11- 1463:3; DX 565 at ¶ 20.)

         These points, raised by defendants, are valid and worthy of consideration. On the one hand, it has been long recognized that local legislative bodies-rather than federal courts-play the primary role in fashioning reapportionment plans. See, e.g., Bush v. Vera, 517 U.S. 952, 954 (1996) (“States attempting to comply with § 2 retain discretion to apply traditional districting principles and are entitled to a limited degree of leeway.”); Upham v. Seamon, 456 U.S. 37, 40- 41 (1982) (concluding that federal courts must defer to the legislative preferences absent a finding of a constitutional or statutory violation); see also White v. Weiser, 412 U.S. 783, 794-95 (1973) (“From the beginning, we have recognized that ‘reapportionment is primarily a matter for legislative consideration and determination . . . .'”) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)). In that regard, a determination of whether such an adopted plan violates § 2 must, at minimum, give some consideration to the principles that traditionally guide the redistricting process. See, e.g., LULAC, 548 U.S. at 433 (noting “the inquiry should take into account traditional districting principles . . .” (emphasis added) (citations and internal quotations omitted)); Bush, 517 U.S. at 979 (“[A] district drawn in order to satisfy § 2 must not subordinate traditional districting principles to race substantially more than is reasonably necessary.”) (emphasis added).

         On the other hand, “it would be unfair to require Plaintiffs to draw maps in strict accordance with the County's priorities.” Rodriguez v. Harris County, 964 F.Supp.2d 686, 745 (S.D. Tex. 2013), aff'd sub nom. Gonzalez v. Harris County, 601 Fed. App'x 255, 260-261 (5th Cir. 2015). A § 2 claim challenges the propriety of the very process by which a legislative body fashioned a particular reapportionment plan-including its choice and application of certain districting principles. See Id. (citing De Grandy, 512 U.S. at 1007). If courts were required to rigidly adhere to the political jurisdiction's redistricting principles,

[V]oting rights cases could be defeated at the outset by the very barriers to political participation that Congress sought to remove: legislative bodies could evade compliance with the Voting Rights Act by carefully selecting an array of redistricting principles such that it would be difficult for a plaintiff to draw a demonstration map that would both differ from the defendant's map and yet still comply with each of the defendant's redistricting principles. Surely, Congress did not intend for the broad remedial scope of Section 2 to be so easily evaded by a defendants' selection of redistricting principles. The scope of the statute must be construed to avoid this anomalous result.


         Accordingly, this court concludes that while plaintiffs' Illustrative Map 1 should reasonably comport with the jurisdiction's traditional districting principles, plaintiffs need not prioritize those principles in the same manner as the County did when it created the 2011 Adopted Map. See Id. at 746; see also, e.g., Perez v. Abbott, 250 F.Supp.3d 123, 142 (W.D. Tex.) (holding that states cannot “claim that a single traditional districting principle . . . allows them to avoid drawing districts required by § 2 under the totality of circumstances”), appeal docketed, __ U.S. __, 138 S.Ct. 49 (2017). The County's local districting preferences are certainly relevant. However, to the extent the County desires to leave existing district boundaries as unchanged as possible, this principle cannot effectively override any finding of ยง 2 liability, especially where such a principle is inescapably linked to the fragmentation of the Latino population. The court finds that Kern County's preferences in these regards are, therefore, better and more properly addressed at the remedial stage of this litigation, if plaintiffs ...

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