Amicus Curiae Brief — Don Higginson, Petitioner v. Xavier Becerra, Attorney General of California, et al.

Supreme Court briefMay 6, 2020

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No. 19-1199

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DON HIGGINSON,

Petitioner,

XAVIER BECERRA, in his official capacity as the

Attorney General of California; City of Poway,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals,

Ninth Circuit

---------------------------------♦--------------------------------BRIEF AMICUS CURIAE OF THE CITIES

OF MISSION VIEJO, OROVILLE, SOLANA

BEACH, SOUTH PASADENA, AND BARSTOW, AND

THE TOWN OF YUCCA VALLEY, CALIFORNIA,

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------MARGUERITE MARY LEONI, ESQ.

Counsel of Record

CHRISTOPHER E. SKINNELL, ESQ.

NIELSEN MERKSAMER

PARRINELLO GROSS

& LEONI LLP

2350 Kerner Blvd.,

Ste. 250

San Rafael, CA 94901

Phone: (415) 389-6800

mleoni@nmgovlaw.com

Counsel for All Amici Curiae

THOMAS D. JEX, ESQ.

Town Attorney

TOWN OF

YUCCA VALLEY, CALIF.

WILLIAM P. CURLEY III, ESQ.

City Attorney

CITY OF

MISSION VIEJO, CALIF.

JOHANNA CANLAS, ESQ.

City Attorney

CITY OF

SOLANA BEACH, CALIF.

SCOTT E. HUBER, ESQ.

City Attorney

CITY OF OROVILLE, CALIF.

TERESA L. HIGHSMITH, ESQ.

City Attorney

CITIES OF

SOUTH PASADENA &

BARSTOW, CALIF.

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................

TABLE OF AUTHORITIES ...................................

iii

INTERESTS OF AMICI CURIAE .........................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

I. The CVRA Intentionally Abolishes the Very

Aspects of Section 2 Jurisprudence That

Are Designed to Ensure It Is A Remedy for

Discrimination in Voting, Rather Than a

Salve for Mere Political Defeats .................. 11

A. By Eliminating the First Gingles Precondition, and Expressly Authorizing

Constitutionally Questionable “Influence”

Claims, the CVRA Creates Liability

Where Electoral Losses Are Not a Discriminatory Effect of the Voting System ...... 14

B. The CVRA Purports to Relieve Plaintiffs

of the Obligation to Prove Discriminatory

Effects Under the Totality of the Circumstances, Which Has Been Held to Support Section 2’s Constitutionality ......... 17

II. The Ninth Circuit Improperly Failed to Apply Strict Scrutiny in Accordance with the

Precedents of this Court, Because It Ignored the Threshold Race-Based Decision

Central to the Operation of the CVRA ........ 20

TABLE OF CONTENTS—Continued

Page

III.

The CVRA Cannot Survive Strict Scrutiny,

Because the Entire Reason for Its Existence

Is to Undo Aspects of Federal Law That Narrowly-Tailor Section 2 to Eradicating Discrimination ................................................... 23

CONCLUSION .......................................................

iii

TABLE OF AUTHORITIES

Page

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) .............................................24

Adarand Constructors v. Pena,

515 U.S. 200 (1995) .................................................20

Baird v. Consolidated City of Indianapolis,

976 F.2d 357 (7th Cir. 1992) ....................................13

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................... 13, 14, 15, 16

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017) ...............................................21

Bush v. Vera,

517 U.S. 952 (1996) .................................................24

City of Boerne v. Flores,

521 U.S. 507 (1997) .................................................20

Earl Old Person v. Brown,

312 F.3d 1036 (9th Cir. 2002) ..................................14

Easley v. Cromartie,

532 U.S. 234 (2001) .................................................23

Grutter v. Bollinger,

539 U.S. 306 (2003) .................................................23

Holder v. Hall,

512 U.S. 874 (1994) .................................................16

Johnson v. DeGrandy,

512 U.S. 997 (1994) ........................................... 13, 17

Jones v. Lubbock,

727 F.2d 364 (5th Cir. 1984) ....................................13

TABLE OF AUTHORITIES—Continued

Page

Jordan v. Winter,

604 F. Supp. 807 (N.D. Miss. 1984) .........................19

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................................................16

League of United Latin Am. Citizens,

Council No. 4434 v. Clements,

999 F.2d 831 (5th Cir. 1999) (en banc),

cert. denied, 510 U.S. 1071 (1994) ...........................18

Major v. Treen,

574 F. Supp. 325 (E.D. La. 1983) ...................... 18, 19

McComb v. Superior Court,

189 Ariz. 518, 943 P.2d 878

(Ariz. Ct. App. 1997), rev. den.,

CV-97-0334-PR (Ariz. Sept. 16, 1997) .....................22

Miller v. Johnson,

515 U.S. 900 (1995) ........................................... 20, 21

Miss. Republican Exec. Comm. v. Brooks,

469 U.S. 1002 (1984)................................................19

Parents Involved in Cmty. Sch.

v. Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) .................................................21

Sanchez v. City of Modesto,

145 Cal. App. 4th 660 (2006)............................. 11, 13

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996) ..................................24

Shaw v. Reno,

509 U.S. 630 (1993) ............................................. 9, 24

TABLE OF AUTHORITIES—Continued

Page

Tex. Dep’t of Hous. & Cmty. Affairs

v. Inclusive Cmtys. Project, Inc.,

135 S. Ct. 2507 (2015) .............................................22

Thornburg v. Gingles,

478 U.S. 30 (1986) ........................................... passim

United Jewish Organizations v. Carey,

430 U.S. 144 (1977) .................................................14

United States v. Blaine County,

363 F.3d 897 (9th Cir. 2004) .............................. 19, 20

STATUTES AND RULES

Federal Voting Rights Act

52 U.S.C. § 10301................................................... 3, 9

California Voting Rights Act

Cal. Elec. Code § 10010(e)(1)&(2) .............................2

Cal. Elec. Code §§ 14025-14032 ........................ 1, 2, 9

Cal. Elec. Code § 14028(a)................................. 13, 23

Cal. Elec. Code § 14028(e) .......................................13

Supreme Court Rule 10(c) ..........................................10

Supreme Court Rule 37.2(a).........................................1

Supreme Court Rule 37.4 .............................................1

Washington Voting Rights Act

§§ 29A.92.005-29A.92.900.......................................11

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

National Demographics Corp., “Updated Counts

of CVRA-Compelled Changes,” online at https://

bit.ly/2J2gaGc (last visited May 1, 2020) .................1

SVREP, “California Voting Rights Act Organizing Project,” online at https://svrep.org/cvra-2018.

php (last visited May 1, 2020) ..................................2

Wash. ACLU, “Voting Rights FAQ,” online at

https://www.aclu-wa.org/pages/voting-rightsfaq (last visited May 2, 2020) .................................11

INTERESTS OF AMICI CURIAE1

Petitioner Higginson documents that “nearly 200

political subdivisions have changed to by-district elections as a result of the [California Voting Rights Act,

“CVRA”]. . . .” Pet. at 21.2 That includes amici cities.

The City of Mission Viejo is a city in Orange

County, incorporated under the general laws of California. Under the 2010 Census, its population is 93,317,

with about 17 percent identified as Hispanic or Latino

of any race. The Latino citizen voting-aged population

(“CVAP”) was estimated to be only about 11 percent

under the 2005-2009 American Community Survey

(“ACS”), and is relatively evenly dispersed. It is not

remotely possible to create a Latino-majority CVAP

district in the City, which uses an at-large, pluralitywin method of electing its five-member City Council. A

Latino ran unsuccessfully for City Council 20 years

ago, in 2000 and again in 2002, but persons of Hispanic origin had been elected to the Council before

and since. Nevertheless, in 2017, the City received a

certified demand letter from an attorney representing

the Southwest Voter Registration Education Project

Pursuant to Rule 37.2(a), amici affirm that notice was provided to counsel for all parties of the intent of amici to file this

brief at least 10 days before the deadline, and all parties provided

written consent to its filing. Pursuant to Rule 37.4, this brief is

submitted on behalf of cities by their authorized law officers.

Those data have been updated: ~400 political subdivisions,

including 126 cities, have changed their electoral system compelled by the racial distinctions drawn by the CVRA. See National

Demographics Corp., “Updated Counts of CVRA-Compelled Changes,”

online at https://bit.ly/2J2gaGc (last visited May 1, 2020).

(“SVREP”), a Texas corporation, but which has taken

up the cause of the CVRA.3 The letter asserted that the

City’s at-large electoral system was characterized by

“racially polarized voting,” defined in the CVRA as a

“difference . . . in the choice of candidates or other electoral choices that are preferred by voters in a protected

class, and in the choice of candidates and electoral

choices that are preferred by voters in the rest of the

electorate,” Cal. Elec. Code § 14026(e), and, as a result,

the City’s at-large electoral system violates the CVRA.

The letter noted that, by enacting the CVRA, the Legislature sought to override “what it considered ‘restrictive interpretations given to the federal [Voting Rights

Act].’ ” The letter warned that “[t]he California Legislature dispensed with the requirement in [Thornburg

v.] Gingles[, 478 U.S. 30 (1986) (“Gingles”)] that a minority group demonstrate that it is sufficiently large

and geographically compact to constitute a ‘majorityminority district’. . . . Rather, the CVRA requires only

that a plaintiff show the existence of racially polarized voting to establish that an at-large method of

election violates the CVRA. . . .” The letter threatened

a lawsuit against the City if it did not “voluntarily”

adopt districts.4 Since the CVRA does not mandate

See SVREP, “California Voting Rights Act Organizing Project,” online at https://svrep.org/cvra-2018.php (last visited May 1,

2020).

Such a letter is a prerequisite to filing suit under the CVRA.

Cal. Elec. Code § 10010(e)(1)&(2). If the jurisdiction “voluntarily”

complies, the attorney sending the letter is entitled to collect the

cost of generating the letter from the jurisdiction, up to $30,000.

Claims rarely come in under $30,000.

single-member districts, and districts could not possibly remedy the alleged voting rights violation, the City

declined to implement them. SVREP sued the City. The

lawsuit was settled and a stipulated judgment entered

allowing the City to seek implementation of cumulative voting or, if that was not done, single-member districts. The City sought to avoid a “sham” remedy, which

was the effect of districting, as minority voters would

obtain no benefit thereby.

The City of Solana Beach is a general law city

in San Diego County. Under the 2010 Census, the

City’s total population is 12,866, of whom about 16 percent are Latino. Latinos were estimated to be only

about 8 percent of CVAP under the 2012-2016 ACS estimates. It is impossible to create a Latino-majority

CVAP district. The City uses an at-large, plurality-win

method of electing its five-member City Council. For

several election cycles, Latinas have been elected and

re-elected to the Council, and in the 2018 elections, using the at-large system, a third Latina was elected.

Nevertheless, in 2018, the City received a certified letter from the same attorney who sued Mission Viejo,

again representing the SVREP. The letter asserted

that the City’s at-large system is characterized by “racially polarized voting” and thus violated the CVRA.

The letter touted the California Legislature’s intent

to undo the jurisprudence under the federal Voting

Rights Act, noting the elimination of the requirement

that a minority group demonstrate it is sufficiently

large and geographically compact to constitute a majority in a single-member district as a prerequisite to

maintaining an action for vote dilution, or any need to

demonstrate indicia of discrimination under the totality of the circumstances. The letter threatened a lawsuit against the City if it did not “voluntarily” abandon

at-large elections. Of course, the tiny City could not

bear such litigation expense and the concomitant risk

of attorney fee-shifting if it lost, so the City begrudgingly passed an ordinance adopting a single-member

district system for four of its council members, and a

directly-elected mayor. Starting in 2020, Solana Beach

voters will be able to vote for only one council member

and the mayor, whereas before they could vote for the

entire Council. The City’s ordinance, however, has a

sunset provision that is triggered if the CVRA is held

to be unconstitutional. Shortly after passage of the ordinance, the City received a bill from SVREP’s attorney for $30,000.

The City of Oroville is a general law city in rural

Butte County, north of Sacramento. Under the 2010 Census, the City’s population is 15,546, with about 12.5 percent Latino. The Latino CVAP was estimated to be only

about 11.5 percent under the 2013-2017 ACS. It is impossible to create a Latino-majority CVAP district in

this tiny City, which uses an at-large, plurality-win

method of electing six council members. (The mayor is

separately elected.) This City also has a small AfricanAmerican population, about 4.8 percent, and AsianAmerican population, about 10.5 percent. An AfricanAmerican woman currently sits on the Council, elected

in 2016. Previously, an Asian-American was elected in

2008 and re-elected in 2012, but did not run again

thereafter. A Latino ran for Council in 2018 in a firsttime candidacy, and was defeated. In November 2019,

the City received a certified letter from the same attorney who threatened Mission Viejo and Solana Beach,

again representing SVREP. The letter was essentially

identical in its assertions of a violation of the CVRA as

those sent to the other amici. The letter threatened a

lawsuit against the City if it did not “voluntarily” abandon at-large elections. The City really had no choice,

given its very limited resources. It is in the process of

splitting its tiny population into six single-member districts while maintaining a directly-elected mayor.

The Town of Yucca Valley is a general law city

in the high desert in San Bernardino County, east of

Los Angeles. Under the 2010 Census, the Town’s population is approximately 20,700, with about 18 percent

Latino. The Latino CVAP was estimated to be only

about 15 percent under the 2011-2015 ACS estimates.

It is impossible to create a Latino-majority CVAP district in the Town, which used to employ at-large elections for its five-member Council. Since 2000, only one

Latino candidate has ever run for the Council. That

was in 2002, and that candidate lost. In 2017, the Town

received a certified letter from the same attorney who

threatened Mission Viejo, Solana Beach, and Oroville,

again representing SVREP. The letter was essentially

identical in its assertions of liability under the CVRA

as that sent to the other amici. Threatened with suit if

it did not “voluntarily” abandon at-large voting, the

Town determined not to expend limited resources on litigation, and reluctantly passed an ordinance providing

for single-member districts for its five Council members.

The Town’s ordinance also has a sunset provision that

is triggered if the CVRA is held unconstitutional.

Shortly after passing the ordinance, the Town received

a bill from SVREP’s attorney for $30,000. Starting in

2018, Town voters voted in the new districts for only

one council member, whereas before voters could vote

for all positions on the Council. No Latino candidate

ran for election; the two incumbents who did run were

re-elected.

The City of South Pasadena, in Los Angeles

County, is ethnically diverse. Under the 2010 Census,

it had a total population of 25,619, of which nonHispanic Whites constituted about 44 percent, AsianAmericans about 33 percent, and Latinos about 18

percent. Latinos were estimated to form about 20 percent of the City’s CVAP (2011-2015 ACS), and are so

dispersed throughout the community that they cannot

form a majority in a single-member district. The City

Council has always been elected at-large. Since 2003,

Latinos have won three of four times they appeared on

the ballot. In 2017, the Council was composed of residents from a diverse range of racial and ethnic backgrounds including Asian, Latino, Armenian, Italian,

and Caucasian. Nevertheless, in 2017 the City received

a letter from the same attorney mentioned above, representing SVREP and claiming the City’s “at-large system dilutes the ability of Latinos (a ‘protected class’)—

to elect candidates of their choice or otherwise influence the outcome of South Pasadena’s council elections” because of racially-polarized voting. The letter

noted, “[T]he CVRA requires only that a plaintiff

show the existence of racially polarized voting to establish that an at-large method of election violates

the CVRA. . . .” The letter demanded the City change

its at-large electoral system, or face suit. Many facts

cited in the letter are incorrect, but given the crippling

expense of CVRA litigation and a plaintiff ’s low evidentiary burden to demonstrate only a correlation between race and electoral choices, the City saw no

alternative but to abandon its at-large electoral system. Latino voters thus lost the right to vote for two

or three candidates every two years, yet they do not

constitute a sufficiently large voting bloc in any district

to elect even one chosen candidate every four years (assuming racially-polarized voting, the legal predicate

for CVRA liability, exists in South Pasadena).

The City of Barstow is a general law city in the

Mojave Desert in San Bernardino County. Under the

2010 Census, the City’s population is 22,936. Non-Latino

Whites constitute only about 26.6 percent of the population. Latinos are 44.9 percent of the population, and

African-Americans are approximately 18 percent. Latinos make up about 37 percent of the CVAP. Given

the relatively even dispersion of the racial/ethnic

groups throughout all neighborhoods in the City, it is

impossible to create a district with majority Latino

CVAP. Historically, the City employed an at-large

method of electing Council members, and numerous

Latinos, African-American, and Asian-American candidates have been elected. Over the past 10 years,

there has been continuous representation on every

Council of two or three Latino Council members (including a directly elected Latino mayor from 2008-2012),

and an African American Council member. Despite the

Council’s racial diversity, and because of the rash of

CVRA demand letters plaguing California cities and

the CVRA’s elimination of the Gingles elements for

proving vote dilution, the City began investigating the

advisability of abandoning its at-large voting system

in the summer of 2017. Then, on September 25, 2017,

it received a demand letter from the same attorney

who sent nearly identical letters to the other amici

herein, again representing SVREP. The letter baldly

asserted the City’s at-large electoral system violated

the CVRA because of the presence of racially-polarized

voting. The letter demanded that Barstow “voluntarily”

change its at-large system or face litigation. Rather

than endure the tremendous expense of litigation under the CVRA, the City instituted a single-member

electoral system. The City then resisted SVREP’s demands for attorneys’ fees on the basis that it lacked

standing, was not properly qualified to do business in

California, and failed to comply with California’s government claims statutes. SVREP sued the City for attorneys’ fees. The City eventually prevailed, and SVREP

has appealed the judgment in the City’s favor.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The Ninth Circuit, in its four-page, unpublished

decision, acknowledged that “a finding of racially polarized voting triggers the application of the [California

Voting Rights Act (Cal. Elec. Code §§ 14025-14032)]. . . .”

Pet. App. A at 4a. “[T]he legal concept of racially polarized voting incorporates neither causation nor intent.

It means simply that the race of voters correlates with

the selection of a certain candidate or candidates; that

is, it refers to the situation where different races (or

minority language groups) vote in blocs for different

candidates.” Gingles, 478 U.S. at 62. Thus, the CVRA

forces a local jurisdiction to choose a new voting system based solely on racial considerations. Under this

Court’s case law, such race-based decisionmaking must

survive strict scrutiny; the CVRA cannot.

The only interest this Court has ever held to justify predominantly race-based decisions regarding the

structure of a jurisdiction’s electoral system is “eradicating the effects of past racial discrimination,” Shaw

v. Reno, 509 U.S. 630, 656 (1993), meaning unconstitutional (i.e., intentional) discrimination. The Court has

also assumed that complying with Section 2 of the federal Voting Rights Act (“FVRA”), 52 U.S.C. § 10301, is

a compelling state interest, because while the FVRA

disclaims the need to prove discriminatory purpose, it

is nevertheless tailored to the eradication of intentionally discriminatory electoral practices. Race-based determinations are at the core of both laws, but the entire

purpose of the CVRA is to undo the narrowly-tailored

design of Section 2.

Section 2, as amended in 1982, enables minority

voters to challenge at-large voting systems, without

the need to prove actual discriminatory intent. For

that challenge to prevail, however, the plaintiff must

demonstrate the at-large system has a “discriminatory

effect” on minority voters, considering the totality of

the circumstances. Gingles, 478 U.S. at 43-45. A Section

2 plaintiff must make a showing of racially-polarized

voting, but that showing merely starts the analysis. It

is necessary but not sufficient, and this Court has held

that racially-polarized voting is not synonymous with

racial discrimination in voting. In Gingles and subsequent cases, this Court has developed detailed standards for distinguishing between at-large systems that

are actually discriminatory and those that result in

mere losses at the polls.

The CVRA was enacted by the California Legislature for the very purpose of evading those standards. In

particular, it abolishes the first Gingles precondition—

that plaintiffs be able to show a majority-minority district

is possible—and it relieves plaintiffs of the obligation to

show that, considering the totality of the circumstances,

the system is discriminatory once a mathematical correlation between race and voting is shown. In so doing,

it “untailors” the law from the compelling purpose of addressing actual discrimination, turning it into a mechanical application of racial thresholds.

The CVRA thus fails strict scrutiny. The Ninth

Circuit concluded that rational basis, rather than

strict scrutiny, was applicable, but its analysis was

flawed. This fundamental mistake of federal law conflicts with the decisions of this Court and merits review. S. Ct. R. 10(c). The Ninth Circuit mistakenly

focused on the downstream implementation of Poway’s

decision to move to abandon at-large voting—the

drawing of the district lines themselves—instead of

the threshold, exclusively race-based criterion determining whether at-large voting is permissible in the

first instance.

The CVRA has forced an involuntary restructuring of local government in California through the unconstitutional application of a racial criterion, and

other states—such as Washington—have begun to adopt

similar state voting rights acts of their own, modeled

on California’s. See Rev. Code Wash. §§ 29A.92.00529A.92.900 (Washington Voting Rights Act); Wash.

ACLU, “Voting Rights FAQ,” online at https://www.

aclu-wa.org/pages/voting-rights-faq (last visited May

2, 2020) (“The WVRA is modeled on [the CVRA]”).

---------------------------------♦---------------------------------

ARGUMENT

The CVRA Intentionally Abolishes the Very

Aspects of Section 2 Jurisprudence That Are

Designed to Ensure It Is A Remedy for Discrimination in Voting, Rather Than a Salve

for Mere Political Defeats.

The CVRA takes Section 2 of the FVRA as its

starting point, then makes a number of alterations to

Section 2’s core standards for identifying discriminatory voting practices. Sanchez v. City of Modesto, 145

Cal. App. 4th 660, 667-68 (2006). While Section 2, like

the CVRA, disclaims a need for proof of discriminatory intent, Section 2 still requires proof of discriminatory effects. Over the past four decades, this Court

has developed standards designed to enable courts to

distinguish racially discriminatory effects in voting

from mere political defeat at the polls. The CVRA was

enacted expressly to abolish those distinctions as a

matter of state law.

The standards for challenging at-large voting under the FVRA are well-established under Gingles.

At-large voting “is not per se violative of minority

voters’ rights,” 478 U.S. at 48, and minority plaintiffs

must first make three threshold showings that: (1) the

minority group is sufficiently large and geographically

compact to form a majority of eligible voters in a singlemember district, (2) the group is politically cohesive,

and (3) there is sufficient white bloc-voting to usually

prevent minority voters from electing their preferred

candidates. Id. at 50-51. These factors establish that

the minority group has the ability to elect, and is not

just losing elections because they are insufficiently numerous, or insufficiently cohesive, to effectively exercise the franchise. Failure to meet any of the Gingles

“preconditions” is fatal under Section 2. The first “precondition” cannot be met in any amicus city herein.

Then, if all three preconditions are proven, courts

must consider whether, under the “totality of circumstances,” at-large voting functions in a discriminatory

manner to dilute the rights of minority voters. In the

“totality” analysis, courts consider the so-called “Senate

Factors,” which are indicative of the “discriminatory effect” of the at-large electoral system. Id. at 35-36.

The CVRA departs from this paradigm in at least

two constitutionally untenable ways.

First, it explicitly abolishes the first Gingles precondition—the requirement that minority plaintiffs demonstrate it is possible to draw a reasonably-compact

majority-minority voting district. Cal. Elec. Code

§ 14028(c); Sanchez, 145 Cal. App. 4th at 669. In so

doing, it authorizes the type of “influence claims” that

this Court rejected under Section 2 in Bartlett v. Strickland, 556 U.S. 1 (2009).

Second, the CVRA dispenses with the requirement

to prove discriminatory effects under the “totality of

the circumstances,” declaring the Senate Factors are

“not necessary factors to establish a violation of ” the

CVRA. Cal. Elec. Code § 14028(e).

Consequently, a violation of the CVRA can be established solely by demonstrating a statistical disparity in the electoral choices of various racial groups. Cal.

Elec. Code § 14028(a) (“A violation of [the CVRA] is established if it is shown that racially polarized voting

occurs in elections for members of the governing body

of the political subdivision or in elections incorporating

other electoral choices by the voters of the political subdivision.”). This runs counter to federal case law, which

holds that “racially-polarized voting” is not synonymous with “discrimination” or “vote dilution.”5 Despite

See Johnson v. DeGrandy, 512 U.S. 997, 1008 and 1011-12

(1994) (holding that a district court’s finding of vote dilution was

error, despite the fact that the presence of racially-polarized voting was undisputed in that case); Baird v. Consolidated City of

Indianapolis, 976 F.2d 357 (7th Cir. 1992) (same, cited with approval in Johnson, 512 U.S. at 1012 n.10); Jones v. Lubbock, 727

F.2d 364, 385 n.17 (5th Cir. 1984) (“Polarized voting is not itself

unconstitutional, and does not ipso facto render the electoral

its inflammatory name, “racially-polarized voting” is

nothing more than a mathematical correlation estimating that different racial or ethnic groups may support particular candidates at different rates. In itself,

there is nothing nefarious about it. Similar distinctions

can be shown with respect to virtually any demographic characteristic—witness the well-known “gender gap” in which women are more likely to favor

Democratic candidates than men are. Proof of raciallypolarized voting can be evidence that discriminatory

effects may be present, but that is just the beginning

of the analysis under Section 2; under the CVRA, it is

the end.

A. By Eliminating the First Gingles Precondition, and Expressly Authorizing Constitutionally Questionable “Influence” Claims,

the CVRA Creates Liability Where Electoral Losses Are Not a Discriminatory

Effect of the Voting System.

In Bartlett v. Strickland, this Court held “a party

asserting § 2 liability must show . . . that the minority

population in the potential election district is greater

than 50 percent.” 556 U.S. at 19-20. Otherwise, the first

Gingles precondition is not met, i.e., a demonstration

that the minority voters have the ability to elect in a

framework in which it occurs unconstitutional.” (citing United

Jewish Organizations v. Carey, 430 U.S. 144, 165-67 & n.24

(1977))); Earl Old Person v. Brown, 312 F.3d 1036, 1049-50 (9th

Cir. 2002) (affirming district court’s finding of no vote dilution,

despite “the presence of racially polarized elections”).

different electoral system. The CVRA, however, was

adopted for the explicit purpose of sidestepping this

Gingles precondition, and protecting minority electoral

“influence.” Were that not the case, none of the amicus

cities herein could have been forced to abandon atlarge voting, as it is impossible to draw majorityminority districts in any of them (or in Poway, for that

matter).

There were several reasons for the Bartlett Court’s

holding, summed up in the principle that a statute that

protects minority electoral “influence” does not remedy

discriminatory vote dilution, but rather ensures maximally effective voting for minority voters. Id. at 15-16.

First, the Court recognized that, for an influence

district to have any meaningful impact on minority

voting power, substantial non-minority crossover is

necessary to elect a minority-preferred candidate. But

the existence of such crossover voting conflicts with the

premise that the structure of the electoral system has

a discriminatory effect because it permits “majority

bloc voting” to defeat minority preferences. See id. at

16-17 (noting this tension). Statutorily protecting minority “influence” in an electoral system is nothing

more than handicapping electoral outcomes based on

the race of the voters.

Alternatively, if non-minority crossover voting

were absent, minority voters “standing alone [would]

have no better or worse opportunity to elect a candidate than does any other group of voters with the same

relative voting strength.” Id. at 14. Election losses

would not be attributable to the discriminatory effects

of the voting system, but merely to insufficient numbers. “For an electoral system to dilute a minority

group’s voting power, there must be an alternative system that would provide greater electoral opportunity

to minority voters,” Holder v. Hall, 512 U.S. 874, 887

(1994), and “ ‘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.’ ” Gingles,

478 U.S. at 50 n.17.

Accordingly, the Bartlett Court held that interpreting Section 2 to allow claims for “influence” districts

would raise “serious constitutional concerns under the

Equal Protection Clause,” because “it would unnecessarily infuse race into virtually every redistricting,”

556 U.S. at 21 (quoting League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 446 (2006) (opinion of Kennedy, J.)), and it would make race the “predominant”

consideration in structuring every electoral system. Id.

And that is exactly what has happened in California—because the CVRA protects minority voting “influence,” every local jurisdiction in the State that uses

at-large voting must determine whether to abandon

that system based solely on whether plaintiffs can

show a statistical disparity in the electoral choices of

the racial groups.

B. The CVRA Purports to Relieve Plaintiffs

of the Obligation to Prove Discriminatory Effects Under the Totality of the

Circumstances, Which Has Been Held to

Be Fundamental to Section 2’s Constitutionality.

In Section 2 vote dilution cases, it is necessary for

plaintiffs to prove the existence of racially-polarized

voting, but such proof, standing alone, is not sufficient

to establish discriminatory vote dilution. Johnson, 512

U.S. at 1011. Rather, once the Gingles preconditions

are established, Section 2 requires courts to undertake

a “searching practical evaluation” of the facts, and a

“ ‘functional’ view of the political process” to ascertain,

under the totality of the circumstances, whether the

challenged system actually has discriminatory effects.

Gingles, 478 U.S. at 44-45. This Court has held that

even when racially-polarized voting is established,

“courts must also examine other evidence in the totality of circumstances, including the extent of the opportunities minority voters enjoy to participate in the

political processes” to determine whether the electoral

system is discriminatory or not, i.e., whether it results

in vote dilution. Id. at 1011-12. Applying this rule,

numerous cases have found no vote dilution—voting

discrimination—even when racially-polarized voting

was established. See, e.g., id. at 1008 and 1011-12 (district court’s finding of vote dilution was error, though

racially-polarized voting was undisputed).6