Litigation Update: California Voting Rights Act Lawsuit

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Civil Rights Practice Group, was recorded on Friday, March 15, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. Today's topic is the California Voting Rights Act. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

As always, please note that all expressions of opinion are those of the expert on today's call.

Today we are fortunate to have with us J. Michael Connolly, who is a Partner at Consovoy McCarthy Park. After our speaker gives his remarks, we will go to audience Q&A. Thank you for sharing with us today. Mike, the floor is yours.

J. Michael Connolly:  Thank you. Welcome, everyone. Today I'm going to be talking about the case Higginson v. City of Poway, and it involves the California Voting Rights Act, also known as the CVRA. And this case was filed in 2017 and is now up on appeal. It was filed in the Southern District of California. It's now up on appeal in the Ninth Circuit. It essentially challenges the constitutionality of the CVRA. And I'll give you a little bit of background so you can understand the issues here.

So Section 2 of the federal Voting Rights Act prohibits the denial or abridgment of the right to vote. It's been held that Section 2 applies to vote dilution claims. That's essentially where someone brings a challenge saying that his or her right to vote has been diluted, often because of a redistricting. The Supreme Court has said under Gingles that you need to show three things to bring a vote dilution claim. You need to show that the minority group was sufficiently large and compact to form a majority in a single member district. Second, the minority group must show that it is politically cohesive. And third, the minority group must show that it will vote as a block, or that the majority will vote as a block to defeat the minority's candidate. And these are the three Gingles factors that you -- that come up a lot in voting rights litigation.

The Supreme Court has said that all three factors are essential to prevail on the Section 2 claim. And in particular, the first factor about compactness is important because it ensures that there is a remedy to any claim of vote dilution. In other words, that the Court can hammer out a remedy where a minority group can elect the representative of its choice. And the Supreme Court has said a number of times that there are concerns with Section 2 with the constitutionality of it, but that Gingles and these three factors are essential to ensuring its constitutionality.

So enter California, and this was maybe in 1990 or around there -- adopted the California Voting Rights Act. What the CVRA says is it gets rid of this first requirement about compactness. And it says that if you, or if a city, has at-large voting and if there is racially polarized voting, then the city is in violation of the California Voting Rights Act. For those of you who don't know, an at-large district is when a city or a town elects all of their city council members as a unit. So an individual can vote for five city council members instead of just one around its neighborhood. Those types of systems are called bi-district systems.

What the California legislature said is that if you have an at-large system and there is racially polarized voting, meaning that one racial group votes for one candidate and another racial group votes for another candidate, then you are in violation of the CVRA regardless of whether you can show that you are sufficiently large and compact to form a majority in a single-member district.

What California also did, like lots of other pieces of legislation it enacts, is that it created an attorney's fee provision in order to encourage private lawyers to enforce the CVRA. And if they win, if these lawyers win, then they recover their attorney's fees. What it also does is that if a lawyer sends out a letter demanding that a city change to a bi-district elections and if the city ultimately does, the lawyer also recovers the fees it spent up to that point up to $30,000.

So in recent years, I don't know maybe the last five years or so, there has been an explosion of these actions from private attorneys enforcing the CVRA. They all sort of follow a very similar pattern. An attorney will send a letter to a city saying they have at-large voting and they have reason to believe that there is racially polarized voting within the city. And they'll say, "You are in violation of the CVRA, and if you do not change your system of voting, we will sue you and you will have to pay all of our attorney's fees at that point." So these letters have been sent out to cities all over the state. And one by one cities have capitulated and have changed their systems. And the reason is that a few have fought back, and they've been hit with massive liability. And others just recognize how easy it is to be in violation of the CVRA and have folded.

So fast forward to where we are here, and around the summer of 2017, the City of Poway, which is just outside San Diego, received one of these letters from a private attorney saying it was in violation of the CVRA, demanding that the city move to bi-district elections where all of the city councilmen are elected through districts. Every single one of the city council members was opposed to this. And they all got up there and said they do not want to do this. But they ultimately saw the writing on the wall and changed their system to bi-district elections. This happened around the summer–September 2017. After that happened, my client, Don Higginson, who was the former mayor of the City of Poway, filed a lawsuit against the City of Poway and against the Attorney General of California because of these actions and seeking to find the CVRA unconstitutional.

Higginson's claim is pretty straightforward. And so what he says is that under the Equal Protection Clause and the long line of Supreme Court cases if voting -- or if race is the predominant factor when lines are drawn, setting up an electoral system, then the system must be subjected to strict scrutiny. And that means that the city must prove that there is a compelling state interest and that its actions were narrowly tailored. Here, Mr. Higginson argued that, first, strict scrutiny applied because there's no question that race was the predominate factor in these lines being drawn because, in fact, it was the only factor. There was racially polarized voting under the CVRA, and the CVRA mandated that Poway change and go to bi-district elections. And then applying strict scrutiny, this would easily fall. Because, one, there's no compelling interest in maximizing the power of any one racial group, the electoral power. The Supreme Court has said that before. Two, even if there was, it's certainly not narrowly tailored. If there was any sort of problem, the California legislature took a sledgehammer to this problem through the CVRA by removing the first factor, the compactness factor, from the Gingles test.

So that was our claim. And originally, it was dismissed on standing grounds. We went up to the Ninth Circuit, and in a very expedited appeal, got that reversed, went back down to the district court. And just recently, the district court again dismissed the complaint. And essentially, the district court's argument was that the CVRA does not classify anyone by race. And so, therefore, strict scrutiny does not apply. The district court read this in a sort of very constrained view, in our opinion, of what would constitute a racial classification under Supreme Court precedent.

So we are on appeal, and we just filed a motion to expedite. And we will be -- the Ninth Circuit will probably rule on that soon, and our hope is that the Ninth Circuit will hear this on an expedited basis. So that's where the case stands now. Really big issue for the state of California and for voting rights in general. There are a lot of towns and cities in California who are facing similar letters and threats of enforcement under the CVRA. And so I think they will be following this lawsuit pretty closely. So with that, I'm happy to turn it over to questions if anyone has any.

Micah Wallen:  Not seeing any questions right off the bat, I had one of myself, Mike. It sounded like from the California Voting Rights Act that if you just need to establish polarized racial voting that that's reason enough or standing enough to change the system. What happens if that sort of racialized voting still occurs under the new system? Is it really just two different options, or could you then potentially sue to change it to a third system? Or how does that work?

J. Michael Connolly:  Right. So the CVRA is pretty straightforward, and it says that if there is racially polarized voting period, then there's a -- and if you have an at-large district, then that is a violation of the CVRA. Our contention is that the CVRA is unconstitutional. So if that statute was struck down, then, of course, there'd still be an avenue for relief under Section 2 of the Voting Rights Act and the traditional way of proving vote dilution claims. So we think that the CVRA, by removing that critical component of finding a compactness is what makes this statute unconstitutional.

Micah Wallen:  And do you think that if the Ninth Circuit agrees, or even disagrees, on it being constitutional or unconstitutional, what do you think the chances are that the Supreme Court would grant cert on appeal for that and also decide the issues afterwards, regardless of how they come out?

J. Michael Connolly:  You know, that's a great question. I think that this is the type of case that the Supreme Court might be interested in, if for any reason because—I'm obviously biased—but I think it is on behalf of the plaintiff that it is unconstitutional under the Supreme Court precedent right now. So who knows? But we're trying to win at the Ninth Circuit, but it is certainly possible that this is the type of case that the Supreme Court could take a look at.

Micah Wallen:  With the CVRA going into place in 2001, I believe, is there a particular reason that a lot more of these cases seem to be coming up recently? Was there a recent change of events, or has this sort of always been percolating there in California?

J. Michael Connolly:  A couple years ago there were some changes in how attorney's fees were collected, and that might have had an effect on why these types of claims have increased so exponentially. Frankly, sometimes all it takes is some enterprising attorney realizing that this avenue is available and jumping on it. And these types of claims are coming -- I believe they're only coming from a handful of attorneys. That's my best guess of why they've increased so rapidly lately.

Micah Wallen:  That's interesting. How exactly did the attorney's fees -- maybe this is going down a rabbit trail, but how exactly did those attorney's fees policies change?

J. Michael Connolly:  There was a provision involving a cap on attorney's fees for cities who are trying to comply with the CVRA. It might have had the effect of actually encouraging plaintiff's attorneys to file these types of demand letters to cities and towns about the CVRA.

Micah Wallen:  All right. Well, we do have a question in the queue as of now. So without further ado, we'll go to that first question.

Helen McCaffrey:  My name is Helen McCaffrey. I'm a member from New Jersey. And I don't know if this is relevant at all. My area of practice was not elections law. But a few years ago we had a problem in New Jersey with Senator Torricelli who was being investigated for various unsavory activities. And he had been nominated to run, again, for the Senate, and at the last minute, he dropped out. And it was beyond the legal limits for the party to nominate someone else. And so it would've left the field vacant and only the Republican would have been running. And it went to our Supreme Court in New Jersey who said that because of 14th Amendment concerns and so on that -- and fundamental fairness that the voters in New Jersey had to be given somebody from the other party to run. So that's when they renominated Senator Lautenberg who had retired. I don't know if that in any way would be helpful -- that kind of argument would be helpful to the whole California process, which I have to say baffles me in that really it has decimated one party, giving complete control to the other party. I guess my question is would that in any way impact the California voting situation?

J. Michael Connolly:  That's interesting. I haven't -- I wasn't familiar with the case in New Jersey that you were talking about. But I'll definitely take a look at it. I mean, as a technical matter, if it was arising under the New Jersey Supreme Court, it wouldn't have any binding effect. But its rationale and its reasoning might be interesting to the types of cases we're dealing with out in California. So thanks for raising it. I'll take a look.

Micah Wallen:  Not seeing any other questions in the queue, Mike, did you want to offer any closing remarks or further thoughts?

J. Michael Connolly:  Nothing more from my end, except be on the lookout. Once this case does reach a decision from the Ninth Circuit, we will try to keep everyone informed.

Micah Wallen:  All right. Well, we look forward to that, and we will most likely have another teleforum if that does happen. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

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