In near lockstep, city officials in Rancho Cucamonga, Upland and Chino are ushering their residents toward incorporating electoral districts into their governmental processes.
Both 77,983-population Chino and 73,732-population Upland have the option, because of their status as under-100,000 population municipalities, of simply imposing the ward system on their residents without subjecting the matter to the electoral process. Chino has elected to do just that, bypassing the expense and uncertainty of an election. Upland will hold a vote on the issue.
In the case of Rancho Cucamonga, which is San Bernardino County’s third-largest city population-wise at 165,269, state law mandates that residents must literally elect to put an electoral ward system in place.
The three cities were prompted to their actions by a boilerplate letter that was sent out to more than a dozen cities in Southern California by Malibu-based attorney Kevin Shenkman in December using the letterhead of his firm, Shenkman & Hughes. In those letters, Shenkman noted the cities “relie[d] upon at-large election system[s] for electing candidates to [their] city council[s]” and charged that “voting within [those cities] is racially polarized, resulting in minority vote dilution, and therefore [those cities’] at large elections are violative of the California Voting Rights Act of 2001. It is our belief [those cities’] at-large system[s] dilute the ability of minority residents – particularly Latinos (a “protected class”) – to elect candidates of their choice or otherwise influence the outcome of [those cities’] council elections.” In those letters, Shenkman threatened to sue the cities “on behalf of residents” if those cities’ at-large council systems were not replaced by ones based on district representation.
To emphasize his point and raise the level of intimidation, Shenkman wrote, “As you may be aware, in 2012, we sued the City of Palmdale for violating the California Voting Rights Act. After an eight-day trial, we prevailed. After spending millions of dollar, a district-based remedy is ultimately being imposed upon the Palmdale city council (sic), with districts that combine all incumbents into one of four districts.”
In Chino, city attorney Jimmy Gutierrez bowed to the pressure. The city hired two separate consultants, Marguerite Leoni, an attorney, and Douglas Johnson of National Demographics Corporation.
Leoni, essentially, put together a case to support Gutierrez’s assessment that the city would run both a financial and legal risk to take a stand against Shenkman, and should rather simply knuckle under and create the districts. Leoni, in her presentation to the Chino City Council, cited the example of the City of Whittier, which was sued over allegations of California Voting Rights Act violations even though the city council moved to place on the ballot a measure allowing voters to choose whether district-based council races should be put in place and Whittier’s voters approved that measure. The case against Whittier was dismissed, giving the city what would normally be considered a victory in the matter. But the law firm that had brought the suit filed a motion to recover its fees – determined to be $900,000 – and the city was obliged to cover those costs. Leoni pointed out that the California Voting Rights Act suspends the normal cost-coverage dynamic of litigation in that plaintiffs filing suit under the act are entitled to recover their costs upon winning but defendants who prevail are prohibited from recovering their legal fees and costs from an unsuccessful plaintiff.
In presenting the city council with options, Leoni did not dwell upon assertions the city might make in its defense, in particular that one of its members, Eunice Ulloa, has a claim, at least by virtue of marriage, to being Hispanic. She is married to Bob Ulloa, who boasts impeccable credentials as to being a bona fide Latino. Moreover, Chino was the political base of Ruben Samuel Ayala, a Chino school board member, Chino city councilman, and Chino’s first elected mayor, who subsequently was elected to the county board of supervisors. Ayala then represented Chino and the surrounding area in the California Senate for 24 years, the first Mexican-American to serve in the state senate since 1911, when Miguel Estudillo represented Orange and Riverside counties.
Rather, Leoni sternly warned that if Chino did not adopt district representation as part of the city council’s electoral formula by the upcoming November election, Shenkman would almost assuredly sue the city. The council then passed a resolution by a vote of 4-0 invoking by fiat a by-district election system that will be in place by November. That council’s action calls for public hearings/meetings to discuss defining districts, city council discussions of the matter on May 17 and June 7, at the last of which the council will consider the adoption of the ordinance committing the city to the district system. The filing period for city council candidacy begins on July 8.
Rancho Cucamonga was among the several cities that received the December letter from Shenkman & Hughes. By January the city began seeking input from the city’s residents about potential boundaries for contemplated electoral districts. Shenkman did not deem the city to be acting with sufficient alacrity and on March 14 the city was served with a lawsuit claiming the city was in violation of the California Voting Rights Act. The suit sought a court imposed requirement that Rancho Cucamonga have the district system in place by the November election.
Despite widespread resentment that the system is being foisted upon the city by outside interests and the belief that the city, which has voted two Hispanic candidates – Mike Palombo once and Rex Gutierrez four times – into office, the city capitulated, seeking to minimize the payday Shenkman & Hughes are seeking by agreeing to hold an election in November to determine if the voters will support district elections.
So far, nine proposals on how the city should be divided district-wise have been brought forth. Six of those originated with city residents. Three are the brainchild of a consultant hired by the city.
One of those, a proposal by Rancho Cucamonga-based attorney Jim Banks, would have created two districts, one of which would have existed at the southernmost end of the city within the traditional community of Cucamonga, where well over fifty percent of the residents identify as Latino. That district, with a population of 41,317 or thereabouts, would have been represented by a single council member. The other district, which would include the northernmost portion of Cucamonga, as well as all of Alta Loma and all of Etiwanda, would be represented by three candidates elected at large from throughout the district. City officials did not embrace Banks’ proposal. Nor did they look with favor upon another proposal brought up by another resident that would have created not four districts representing somewhere near 41,317 residents each but six districts representing roughly 27,545 residents. City officials looked with disfavor on that proposal because they are committed to keeping the city council a five-member panel, meaning four council members each representing a single district and a mayor elected at large.
At the April 6 city council meeting, city attorney James Markman said that because Rancho Cucamonga is a general law city, it must function with a five member city council. “Since this is not a chartered city, there can only be five councilmen,” he said.
Another proposed district map which followed zip code boundaries was deemed unacceptable because the districts were not equal in population. The council and city staff seemed favorably disposed toward four of the proposals that not only were balanced by population – a constitutional requirement in council districting – but generally kept the area south of Foothill Boulevard – a major portion of historic Cucamonga that features a Latino population – as one district. Three of those drafts were done by the city’s consultant.
On April 6, Mayor Dennis Michael said it is not a foregone conclusion that any of those models for the drawing of the districts will be accepted and automatically approved.
“I want to make sure that everyone’s aware, that as your mayor and city council, we want the Rancho Cucmonga community’s participation and input on this very important issue that’s before this city,” Michael said, “and we want you to be very involved and engaged in this process. This is an issue that we did not bring forward. We have litigation that has occurred against the city, so we are looking for all kinds of public input and we welcome your thoughts and weighing in on this issue”
City manager John Gillison said that prior to the lawsuit the city was at least partially prompted to move forward with the proposal because of the interference of Shenkman. “We received a threat of litigation,” Gilison said.
Nevertheless, the city is not necessarily buying its way out of the lawsuit by giving the voters the option of choosing districts, Markman said. It remains possible Shenkman and his firm will seek legal fees from the city in the aftermath of the vote on districts, whether or not the voters approve them. The lawsuit is yet proceeding and if the voters reject districts, the matter may end up in court. In the event the voters pass the measure calling for district elections, Shenkman & Hughes could very well seek attorneys’ fees, arguing that the suit was a valid one that resulted in the city effectuating the change.
Markman disputed that the city’s action should be interpreted as the city admitting it has had unfair elections in the past.
“Why are we doing this?” Markman asked, and then proceeded to answer. “The Federal Voting Rights Act since 1964 and the California Voting Rights Act now have questioned open elections in areas where you might get polarized voting that precludes any good possibility that a member of a protected class, in the case of Rancho Cucamonga Latinos, could actually be elected because of voter preferences that are related to their race,” Markman said. “That’s all a calculation, a demographic calculation, and there have been a number of lawsuits filed in California. The law’s been around for a long time, but there’s been a wave, an epidemic, of lawsuits that have forced a lot of cities in this position. There was recently a letter put out by a couple of organizations threatening about 199 more lawsuits. So, when we look at all that – in fact before we got this threatening letter, staff was looking at the census data and recognizing the number of Latinos that have been identified in the census and started looking at this even before all this litigation popped up. That’s called polarized voting and we are not, we have not, legally concluded we have polarized voting in California, and depending on how all of this goes and whether there is an election and what the outcome is, we could be litigating that point, so I don’t want anyone to take the fact that we’re doing this process, because it’s the most efficient cost effective way of dealing with this problem, that we’re conceding such a lawsuit should be filed or should be prosecuted or would be successful because we don’t concede any of that.”
In Upland, the city council could have used its authority, as did the Chino City Council, to create the district system by drawing up four population-balanced wards. Instead, the council chose to send the matter to a vote of the residents. After receiving Shenkman’s letter, the city attorney’s office negotiated with Shenkman’s firm, agreeing to pay Shenkman $45,000 and to draw up the plans for a ward system that the voters could consider. In return, Shenkman offered to hold off on filing the suit, at least until the vote on the district election forming measure is voted upon. If Upland’s voters embrace the district elections and a primarily Latino district is incorporated into that system, Shenkman will very likely leave the city alone. But if the voters do not approve the district plan, Shenkman has reserved the right to file suit against the city.
Some Upland residents called this blatantly racist, unconstitutional, a violation of the 14th Amendment and tantamount to blackmail.
This week, the Upland City Council considered and ultimately approved a plan which Upland Assistant City Manager Jeannette Vagnozzi and a city consultant, David Ely of Compass Demographics, said would involve input being taken from what they called “stakeholders,” including city residents, with regard to a districting map, so that the plan for a ward system could be ready, in Vagnozzi’s words, “no later than August 1.” In this way, a ballot measure to approve or reject the ward system in Upland could be placed on the November ballot.
To facilitate public input with regard to the process, Ely is to establish an office at City Hall, where he will be available during some of the city’s business hours so he can hear from residents with regard to their suggestions as to the formation of the districts to be considered.
Upland City Attorney Richard Adams offered a similar rationale for complying with Shenkman’s demands as had Leoni in Chino and Markman in Rancho Cucamonga. In doing so, Adams went further than either of the other two lawyers in conceding their might be grounds for Shenkman to proceed legally against the city he represents. This upset some of the city’s residents, who do not believe the city should give up any ground to Shenkman.
“The city received correspondence in December indicating that they [Shenkman & Hughes] believe the city was in violation of the California Voting Rights Act because of the demographics in our city and the fact that a particular ethnic group in the city had never had a person on the council,” Adams said. “Their claim was evaluated and basically if they can show that particularly in the city of Upland – there’s 38 percent of the population is I guess what one would indicate quote unquote Latino and there hasn’t been a Latino representative on the council – they have a lot of the evidence they would need to indicate there is polarized voting. The solution the California Voting Rights Act would allow, one of the solutions, the main one that’s being used is to go from at-large elections to district elections because with the smaller districts it’s easier for people to run for office. It’s less expensive because it’s a smaller area to go on. And it’s felt that would be a type of way to handle what is perceived to be a polarized voting situation in our city. I’m not saying there is one, however, there is some evidence toward that. There have been a number of cities that have had situations, in fact some of your neighbor cities have the same kinds of claims made, and any of the cities that have defended these cases have ended up spending in some cases millions of dollars. We haven’t found that any of them have been really successful. They ended up with the courts ordering the district-type elections. This way, the route the council chose, entering into the settlement puts the community in charge of the creation of the districts to be in compliance with the California Voting Rights Act.”
One Upland resident, Todd Mills, said that Adams’ summary of the legal issues pertaining to the matter “was pathetic.” He said that the U.S. Voting Rights Act was framed in the context of wholesale violations of voting rights of African Americans as occurred in the South decades ago and was not applicable to the situation in Upland. He said the California Voting Rights Act institutionalized violations of the principal of fairness and equal protection under the law for all by giving privileged status to one group over others. “There is no application of [the California Voters Rights Act] that is not unadulterated racism,” Mills said.
Mills questioned the process by which the city proposed to draw up the districts, saying private sessions in which Ely would be lobbied by one person or group was unacceptable. “I am going to suggest strongly that they be public meetings… recorded on video and audio, not secret meetings with key stakeholders,” Mills said. “That is simply inappropriate. The residents need to be in charge of this. By saying there is a key stakeholder, that means there is a stakeholder above the other stakeholders. You have listed the group that has blackmailed the city [as a key stakeholder]. They need to be banned from every single part of this process. The main criteria points [for drawing up the districts] are all designed to divide and conquer the residents. It is not appropriate to get into groups and discuss how we are dissimilar. We’re going to sit down and discuss what is different about everybody? Really? That’s outrageous. It pits the residents against one another. We were [threatened with being] sued on false claims of racism and in response to that we have to have a district for one particular race. Your agreement says we have to have a district for one particular skin color.”
This, Mills said, is a violation of the 14th Amendment.
The council, Adams and Ely sought to defuse the charges that the city was engaging in doublespeak by saying, with regard to the “general districting considerations” that the formation of the districts would pay attention to “demographic characterizations, population ethnicity, population by ethnic identification and socioeconomic characteristics,” while saying that legally “race must not predominate” in forming the districts.
Mayor Ray Musser took a shot at resolving that paradox.
“We were chosen [to receive the letter from Shenkman & Hughes] because we have 38 percent in this city who are Hispanic,” Muser said. “It’s hard to explain. It’s not driven by racism but it is. We’re not hiding anything. Let’s say the lower part of the city will be the Hispanic district. We all agree there.”
Musser noted that historically voter turnout below Foothill Boulevard, the southern end of the city, is “about half of what it is around 18th or 19th Street [further north in Upland]. We need to go through this process. Yes, one of the four [districts] will be carefully carved out. Let’s face it. That’s as honest as I can get. We don’t like it but that’s where we are.”
Adams acknowledged the goal is to create a district in which Hispanics will make up the dominant numbers. “The settlement agreement requires that at least one district have a majority of Latino or Hispanic voters, 51 percent or whatever is a majority,” Adams said. He added that people might perceive a “paradox” creating a district that is intended to favor one ethnic group and the law that prohibits a district from being formed so that one race predominates, but that the paradox was one of perception rather than reality. “I don’t see that they are conflicting but I can see that people see they are,” Adams said.
Ely said, “Race can be used to benefit people or to hurt people. Federal law says that you got (sic) to make sure it is not being used to hurt people. You got (sic) to make sure that the districts are fair, so you consider race when you are doing it. The expectation that’s embodied in the settlement agreement is that if you draw districts that fairly represent the communities the way they exist in the city, one of them will have at least a fifty percent Latino voting age population. Given the context of the California voting rights act and some of the federal requirements to avoid minority vote dilution, in looking at voter participation we use surname matching methodology to get an estimate of registered voters who fall into different ethnic groups.”