By Mark Gutglueck
Over the last two years, six San Bernardino County cities that traditionally featured at-large city council elections have been forced to embrace ward-based election systems or take substantial steps in that direction. The new election regimes were imposed on those cities as a consequence of the California Voter Rights Act, the terms of which allow a plaintiff or plaintiffs to file legal action alleging polarized voting and collect legal fees upon proving such polarized voting exists. The California Voter Rights Act confers upon plaintiffs a significant advantage, such that even if the challenge does not succeed, a plaintiff is not required to pay the prevailing city’s legal fees.
Because a handful of California cities that resisted challenges made of their election systems under the California Voting Rights Act were unsuccessful in their legal defenses and were forced by the courts to pay substantial amounts to cover those legal fees, most of the cities in San Bernardino County hit with such a demand have made a show of compliance.
With one of the most recent such demands consisting of a threat of legal action against the City of Chino Hills, however, a voting rights activism group may have set in motion a set of events that will result in a legal precedent that will stem the stampede of cities moving toward incorporating ward systems into their elective processes. This action comes as the state legislature is revisiting the underlying and procedural concepts, tenets and facets of the California Voting Rights Act.
Highland was the first San Bernardino County city served with a demand that it alter the way it elects its council members. The lawsuit was filed July 18, 2014 in San Bernardino Superior Court by a Lancaster-based lawyer, R. Rex Parris, in conjunction with the Malibu-based law firm Shenkman & Hughes and the Los Angeles-based Law Office of Milton C. Grimes on behalf of Lisa Garrett, a Latino resident of Highland. In response, the city put an initiative on the November 2014 ballot, Measure T, asking if the city’s residents were in favor of a ward system. Measure T went down to defeat, with 2,862 votes or 43.01 percent in favor and 3,793, or 56.99 percent opposed. The lawsuit proceeded and the city sought to assuage the demand by proposing to allow cumulative voting, in which each voter is given one vote for each contested position and is allowed to cast any or all of those votes for any one candidate, or spread the votes among the candidates. When the matter went to trial, despite making a finding that the socio-economic based rationale presented by the plaintiff’s attorneys to support the need for ward elections was irrelevant and that the plaintiff’s assertion that district voting was the only way to cure the alleged violation of the Voting Rights Act was false, San Bernardino Superior Court Judge David Cohn mandated that Highland adopt a ward system.
In December 2015 Kevin Shenkman, using the letterhead of his firm, Shenkman & Hughes, sent boilerplate letters to the cities of Chino, Upland and Rancho Cucamonga, among nearly a dozen others, asserting 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.”
Chino responded by having its council, pass a resolution on a vote of 4-0, invoking by fiat a by-district election system that will be in place by November.
In a highly controversial move that was widely perceived as acceding to extortion, the Upland City Council agreed to draw up the plans for a ward system that the voters could consider and pay Shenkman $45,000 in return for Shenkman holding off on filing the suit against the city, at least until the city’s residents vote upon the district election-forming measure.
In Rancho Cucamonga, a city with a population of 165,269, voters have on five occasions elected Latinos to the city council. Officials there likewise capitulated to Shenkman’s threats and the city council followed city attorney James Markman’s advice to have an electoral ward map featuring four districts of roughly 41,317 residents each drawn up and which the city’s voters will have an opportunity to endorse in the November election.
The city of Yucaipa, while not yet the subject of a demand that it adopt a ward system, this spring hired a consultant, Claremont-based National Demographics Corporation, to review establishing voting districts for electing city council members and to draft district election map options. The city council in June adopted one of those maps featuring five wards. The council said it did so to head off any potential future litigation based upon the California Voter Rights Act.
The Redlands City Council, which on its own initiative in May began looking into converting to a council ward system, was likewise threatened by the Mexican American Legal Defense and Educational Fund earlier this month with legal action if it did not move immediately to put such a system in place. Last week, on August 16, the city council held a specially-called meeting at which it somewhat obsequiously approved a resolution establishing the criteria for five voting districts. It is now in the process of setting up a public input process on drawing up the boundaries of those wards.
On August 9, the Mexican American Legal Defense and Educational Fund, known by its acronym MALDEF, sent a letter to the Chino Hills City Council informing that body’s members that unspecified Hispanic residents of Chino Hills have complained of polarized voting in the community.
MALDEF attorney Matthew Barragen demanded that Chino Hills dispense with its at-large election system that has been in place since the city’s inception in 1991. Barragan maintains the at-large election system in Chino Hills interferes with Latino voters electing candidates that they favor. Barragan called upon the city council to adopt a resolution converting Chino Hills’ election process into one involving wards, threatening forthcoming legal action if the city council did not do just that by August 24.
For a multitude of reasons, it appears that Barragan and the Mexican American Legal Defense and Educational Fund are spoiling for a fight in Chino Hills they might not want to actually engage in.
According to a comprehensive legal, political, procedural and governmental analysis, a lawsuit against Chino Hills based on the California Voters Rights Act would have little prospect of succeeding on the merits; moreover, such a suit would be likely to raise issues that would potentially transmogrify the standards under which the previous legal victories enjoyed by plaintiffs in California Voting Rights Act were achieved, leading to what could prove a precedent-setting decision that would undercut the Act altogether.
Lawsuits based on the California Voting Rights Act have been among the most consistently successful class of litigation in California judicial history, a boon to voting rights advocates and a huge cash cow to the lawyers filing them. Dozens of cities throughout the state have been sued for violating the California Voting Rights Act. Only a fraction of those sued have fought back. To this date not one city that has actively contested such lawsuits has won. This uncommon string of victories by the plaintiffs, in most cases based upon circumstances where some order of representational imbalance could be illustrated, has bred in potential defendants a timidity that at this point is nearly universal. Given the overwhelmingly successful track record of the plaintiffs in such cases, even those cities with a viable or potentially viable defense are increasingly unwilling to roll the dice in making a defense. And the one-sided nature of the Act, which grants plaintiffs virtual immunity in bringing a suit such that even if they lose they are not responsible, as is with civil litigation otherwise, as the loser to pay the legal costs of the prevailing defendant, has tilted the playing field ever more against cities.
In the cases of Rancho Cucamonga, Chino, and Redlands, for example, all of those cities historically elected Hispanic candidates to their respective city councils. Such a consideration would strongly controvert the assertion that those communities were ones in which racially or ethnically polarized voting occurred. In the case of Chino, that city’s most celebrated and successful homegrown politician – Ruben S. Ayala – was Latino. A member of the school board beginning in 1955, then the city council in 1962 and then mayor from 1964 to 1966, he was never rejected by Chino’s voters. His exodus from the city council came only when he moved up the political pecking order, first to the San Bernardino County Board of Supervisors and thenceforward to the California Senate. In the 43 years between 1955 and 1998, Ayala continuously held office. His only electoral defeat came when he lost in his bid for the Democratic nomination for Congress in the 1972 primary. More recently, in Redlands, Pete Aguilar, also Latino, served on the city council, having been chosen by the council to fill in a vacant seat on that panel in 2006, and subsequently being elected in his own right. He was subsequently reelected to the council and chosen to serve as mayor in 2010 and again in 2012. He used that position as a political springboard into higher office, running successfully for Congress as a Democrat in 2014. Thus, he was not voted out of office by Redlands voters but left voluntarily. Historically, Rancho Cucamonga has had Hispanic elected office holders, including councilman Mike Palombo, an early member of the city council, and Rex Guttierez, who was thrice elected to the city council.
Whether those three cities might have prevailed in any lawsuit filed against them under the California Voters Right Act is a moot point, as all three voluntarily complied with accepting, or allowing their residents to choose, a ward system.
Afoot now is an effort to force Chino Hills to move to a ward voting system. Of moment, however, is that Chino Hills, perhaps as much or more than any city that has ever been so challenged, has a strong case that it is not out of compliance with the standards outlined in the California Voting Rights Act.
Foremost, Chino Hills currently has, and previously had, Latino elected officials, ones serving on the city council as well as the fire and school boards, a circumstance which directly and convincingly controverts the claim that racially or ethnically polarized voting has occurred there.
Moreover, a strong case can be made that given the distribution of residents in Chino Hills generally and the distribution of Latinos in Chino Hills in particular, instituting a ward voting system in Chino Hills carries with it the possibility that such a change would not achieve the desired effect of politically empowering the Hispanic population in Chino Hills but rather potentially have the opposite effect of rendering it less likely that a Hispanic candidate would be elected to or remain on the council in Chino Hills.
According to the U.S. Census Bureau, Hispanics in Chino Hills in 2014, the most recent year for which data is available, comprise 28.9 percent of the population. By contrast, Latinos in Chino Hills are outnumbered by the Asian descent population, which stands at 31.8 percent, and the white population, at 50.7 percent. Hispanics in Chino Hills significantly outnumber the black population, which registers at 4.2 percent.
Importantly, the population of Chino Hills is relatively evenly distributed geographically. While the easternmost-lying portion of Chino Hills does have a slightly larger concentration of Hispanics than elsewhere in the city, that number is still not high enough to allow for a district to be drawn there that would have anywhere approaching a Latino majority or even a Latino plurality. In this way, creating a ward system would carry with it the possibility that the council’s current Hispanic member, Ray Marquez, would be shunted into a district in which he would have to stand for reelection against other incumbent council members, reducing his chances of remaining on the council. Simultaneously, the creation of other districts in which Latinos held no registration advantage would not be likely to enhance the prospect of seeing greater Hispanic representation on the council than currently exists.
Should Chino Hills choose to resist the call for creating city council wards and put on a defense in court to any lawsuit the Mexican American Legal Defense and Educational Fund brings citing the California Voting Rights Act, the relative strength of the city’s legal position might result in a verdict or finding that would break the string of victories plaintiffs have achieved using the California Voting Rights Act in the courts so far. Such an outcome would potentially weaken those utilizing the California Voting Rights Act, creating a situation in which efforts to ensure voting rights for protected groups could be compromised or rendered problematic in the future.
Already, there is an indication that Chino Hills city officials perceive that MALDEF was running a bluff and that it might not be able to back up the tough language contained in its demand. In his letter, Barragan issued a demand that the Chino Hills City Council show that it was purposed to comply with the Mexican American Legal Defense and Educational Fund’s call for the city switching to a ward system by adopting a resolution to that effect by August 24. That meant the city council would need to agendize the resolution for its August 23 meeting. The council, however, cancelled the August 23 meeting. August 24 has come and gone and MALDEF has initiated no legal action against Chino Hills.
Chino Hills City Manager Konradt Bartlam told the Sentinel that the city council will discuss the matter in closed session at the September 13 meeting.
Bartlam gave no concrete indication as to whether he would, as have other city managers with cities faced with a demand that they adopt a district-based voting system, recommend one way or the other that the city stand pat with its current at large electoral approach or knuckle under to the demand.
In addition to the city not having abjectly complied with Barragan’s August 24 deadline, there were some subtle indicators Chino Hills officials are not going to be stampeded toward adopting a ward system and that they understand that the plaintiffs will not be able to bring an open-and-shut case against the city alleging polarized voting.
“We will be considerate of MALDEF, but deliberate as well,” Bartlam said. The city manager indicated an extensive analysis of the city’s demographics had already been carried out and that it was abundantly clear that “The Hispanic numbers are not as great as the Asian population.” Noting that the Mexican American Legal Defense and Educational Fund is representing Hispanic rather than Asian voters, Bartlam expressed the view that MALDEF and Barragan might be progressing on a tangent at odds with their own goals.
Bartlam did not discount the city’s option of having the council simply vote to impose a ward system on its voters, as doing so would be less costly than holding an election in which the choice between at-large and by-district approaches would be up to the city’s residents.
“This push toward ward elections is a growing trend,” he said. “Fortunately, our city council has the ability to make that decision. Cities such as Rancho Cucamonga did not have a choice but had to go to an election.” Bartlam’s reference is to state law, which allows cities of populations below 100,000 to have their city councils exercise discretion over whether they can have electoral districts or not. In cities above the 100,000-poulation threshold, changing to or from ward systems must be approved by the city’s electorate.
At the same time, Bartlam hinted that because of the timing of the Mexican American Legal Defense and Educational Fund’s challenge, together with the prospect that the legislature is on the brink of tweaking the California Voters Rights Act or augmenting it with further provisions, the ability of plaintiffs suing under the act to outmuscle municipal defendants on the basis of litigative costs may be drawing to a close.
Those changes might extend to either preventing plaintiffs from being eligible to recover all legal costs in the filing of a voting rights lawsuit unless they prevail on all causes of action or, conversely, making plaintiffs liable for the court costs of defendants if the suits fail.
“It is my understanding there is likely to be some legislation before the next general election because of the impact this has had not only regionally but across the state,” Bartlam said.
The Sentinel spoke with Barragan yesterday, August 25.
To the suggestion that there was a rather weak or non-existent case that polarized voting had taken place in Chino Hills, as demonstrated by Marquez and Rosanna Mitchell-Arrieta having served on the city council and the current case on Chino Valley Unified School District Board where, Latinos/Latinas in the personages of Irene Hernandez-Blair, Sylvia Orozco and Andrew Cruz, represent the board majority, Barragan downplayed the importance of those considerations.
“We are aware of the electoral history in Chino Hills,” Barragan said. “It is true that there is currently a Latino on the council, but when you look at all elections the city has held, there have been a number of Latino candidacies that have failed. We looked at the Chino Hills elections with our experts and we believe racially polarized voting occurred in those elections.”
Barragan said that an analysis of voting that occurs outside of Chino Hills shows that Hispanic voters tend to support Hispanic candidates and the consideration that several Hispanic candidates did not achieve success shows that Chino Hills’ Latino voters have been disenfranchised. “That is what this Act is made to fix,” he said. “That one Latino candidate made it through and got enough support to get elected, does not preclude a case from being made that there is polarized voting in Chino Hills.”
When asked about whether the concurrent failure of white or other non-Latino candidates to achieve election in those same elections might undercut that argument and what bearing the Asian population’s electoral failures might bear on the circumstance, Barragan said, “We have a burden in our case to show Latino voters [were disenfranchised]. That does not prevent an Asian voters’ rights advocacy group from taking up the cause of Chino Hills’ voters of Asian extraction. The remedy would be the same in an Asian case,” he said.
Queried as to what criteria would be needed to establish that racially polarized voting exists, Barragan said, “California looks at two things: Is there racially polarized voting? And currently are there at-large elections? It the answer to both questions is yes, the remedy is district based elections.”
Confronted with the consideration that even in that area of Chino Hills most heavily saturated with Hispanic residents, the east side, Latinos yet comprise well below fifty percent of the population in those neighborhoods, Barragan yet insisted that a Hispanic majority district might be drawn up without gerrymandering.
“Looking at the most recent data, we believe it to have been possible to draw a district that is majority Latino,” Barragan said. Despite white residents being the majority in those areas, Barragan said that “Following principles that will comply with state and federal election law, complying with the need for contiguity and compactness, all of those things, it is our position a majority Latino district can be drawn.”
Barragan at one point acknowledged that the framing of the voting wards might nevertheless result in none of the city’s electoral wards having a Hispanic majority or even a plurality. Nevertheless, he defended the push to have the city adopt a ward system.
“The California Voters Rights Act does not mandate that Latinos or any other ethnic minority sit on the council,” he said. Barragan claimed that even if the adoption of ward systems did not result in Hispanics being elected to the council, “it would still work because the Latino community wanted that candidate,” i.e., the one elected. Barragan said the problem with the current at-large voting systems in most cities is that Hispanics and other minorities are not being represented. “Their voice is not able to have an impact,” he said. “You have substantial portions of the community that have no say about their local government. That is the issue: that they have a voice on the council. Even if those elected or running for the council are not Hispanic, Barragan said, “They will need to appeal to Latino voters and their issues, both during and after election time, or risk not getting elected. A big part of this is that incumbents tend to live next door to one another. When we look at city councils or school boards, we see residents in one particular part of the community sitting and representing everyone. If you have representatives from every part of the city, they will raise issues unique to their portion of the city and speak for everybody. In the cities where we have seen a change to district-based elections we have seen more candidates participating than ever before.”
Creating wards will sometimes require that those incumbents run against one another, Barragan acknowledged, “which might not be favorable to the incumbents” he said, but which would nevertheless “be beneficial to the community.”
While intent on selling the benefits of district-based voting in municipalities, Barragan was resistant to acknowledging that such systems have drawbacks. Municipal electoral wards are notorious for creating circumstances in which corruption often flourishes. Dividing a city into council wards can create political fiefdoms, in which a councilman or councilwoman is able to exercise nearly absolute power, while inviting the council members outside a given district to cast a blind eye to those excesses and support their council colleague in that parochial domination in exchange for being given absolute license and support within his or her own district. Such abuses of power in the ward system in Chicago are legendary. At present in San Bernardino County, only two of the 24 incorporated municipalities – San Bernardino and Colton – have ward systems. In the last 20 years, more council members from those two cities – 11 in all – have been indicted and/or convicted of bribery or political corruption than in the other 22 cities in the county combined.
Bartlam, who previously was the city manger in Lodi, and held other administrative positions with the cities of Brea, Glendora, Simi Valley and Pomona, told the Sentinel “I have experience with both at-large and ward elective systems. There are a number of reasons why ward systems are not desirable from a management standpoint.”
Nevertheless, Barragan maintained that the failures and shortcomings of ward systems are not sufficient reason to resist the imposition of one in Chino Hills.
“There are good people in public service and not so good ones,” he said. “I don’t think we can tie the quality of leadership to the type of election systems. If we were to do some statistical analysis of how a government is run at the local level with both systems I don’t think you would see any basis for the conclusion that a district system leads to that [political corruption] as a matter of certainty.
It is possible to represent the people [of a given limited district] and the city as a whole. You see time and time again district-based elections leading to conversation that would not happen if the council members did not come from all around the city.”
Barragan continued, “In addition, we believe a district-based system is a better system for government. When we look at city councils or school boards, we see residents in one particular part of the community sitting and representing everyone. If you have representatives from every part of the city, they will raise issues unique to their portion of the city and speak for everybody. In the cities where we have seen a change to district-based elections we have seen more candidates participating than ever before. There are more people willing to run because they have been shut out before. These people talk to their neighbors. They see the potholes that persist, the crime. That is why we support this.”
More inclusive representation, Barrgan said, is “in the interest of everyone.”
The presence of a Latino on the Chino Hills City Council and the complications the city’s mix of ethnicities presents in carrying out a cogent analysis of voting trends has convince many people that Chino Hills presents potential plaintiff’s with at best a marginal case that Hispanics are being politically disenfranchised there. Barragan insisted otherwise. An analysis of whether the case will hold up in court, Barragan said, is “something we do before we send the letters. We evaluate the situation.” If the city chooses, he said, to “change within a reasonable time period, what we get is better government and the preservation of voting rights. If the city decides it is not best for them to convert voluntarily, then we would force them to do it through litigation.”
At that point, Barragan flexed his litigative muscle, referencing the financial advantage the California Voting Rights Act gives plaintiffs over cities in the lodging of voting rights cases.
“The attorney fees in other cases, as you have seen, are quite high,” he said. “We hope the council will do what is best for the community. We hope they will do that [adopt a ward system] and save them the expense of having to litigate. There are experts we hire on our side to evaluate” the existence of polarized voting, he said. “We have determined to our satisfaction and standard of proof that polarized voting exists in Chino Hills.”
As to the possibility that pushing for wards in Chino Hills might actually backfire by pushing the city’s one current Hispanic councilman, Marquez, into a ward in which he will need to compete against other incumbents, potentially resulting in his exodus from the council with no guarantee that the other wards will elect a Latino, Barragan said, “The idea that going to district elections would be worse or in some way cause harm to Latino voters is unfounded.”
As to suggestions that there is more at play than the public interest to the wave of legal demands to cities throughout California that they adopt ward systems, Barragan said he, the Mexican American Legal Defense and Educational Fund and other lawyers and law firms pursuing cases under the California Voting Rights Act are “not in this to make money.”