The City of Chino Hills, the last of San Bernardino County’s cities to resist what a number of local officials have called an extortionate ploy by a consortium of predatory law firms to impose ward systems on the Southland’s municipalities launched 12 months ago, has capitulated to that pressure.
At its November 22 meeting, the Chino Hills City Council assented to moving the city toward a district-based system by the next election cycle. In doing so, the current council, which was elected through an at-large voting system as were all other city councils in the city’s 25-year history, enunciated their uniform and unanimous opposition to the council ward concept, but said they had little choice in the matter. Against their own sentiment, the council members voted 5-0 to transition the county’s southwesternmost city from an at-large to a district-based election system.
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 to 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.
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 Latina 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 dollars, 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 was in place for last month’s election.
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. Itr further agreed to pay Shenkman $45,000 in return for Shenkman holding off on filing the suit against the city. The city council then instituted a ward system in Upland on its own authority.
In Rancho Cucamonga, a city with a population of 165,269, where voters had 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, which was submitted to the city’s voters on November 11. The measure codifying that map was approved by the city’s voters by a 63.77 percent to 36.33 percent margin.
The city of Yucaipa, while not yet the subject of a demand that it adopt a ward system, eight months ago 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 in August with legal action if it did not move immediately to put such a system in place. 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 finalizing 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.
The City of Chino Hills did not exactly snap to in response to Barragan’s threat, at least initially.
A comprehensive legal, political, procedural and governmental analysis showed a lawsuit against Chino Hills based on the California Voters Rights Act would not have an overwhelming prospect of succeeding on the merits and would likely 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 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 have proven 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 in which the loser must 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 three of those cities capitulated despite their having historically elected Hispanic candidates to their respective city councils, a consideration which seemed to 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 a Latino who had risen from being a member of the school board in 1955, then a member of the city council in 1962, and then mayor, never having been 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 all cases with the heavy support of the voters in Chino. More recently, in Redlands, Pete Aguilar, also a 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, likewise with the support of a major cross section of Redlands. Historically, Rancho Cucamonga has had Hispanic elected office holders, including councilman Mike Palombo, an early member of the city council, and Rex Gutierrez, 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.
Chino Hills, as much or perhaps more than any city that has ever been so challenged, also had 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 watertight 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, the creation of a ward system there carries 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 hold no registration advantage would not be likely to enhance the prospect of seeing greater Hispanic representation on the council than currently exists.
Nevertheless, the Chino Hills City Council on November 22 threw in the towel, moving toward the creation of a ward system of governance.
In anticipation of what was coming, the Chino Hills City Council at its September 27 meeting voted to retain the services of National Demographics Corporation, the same consultant hired by the City of Chino to draw up its electoral map. Tentatively, National Demographics Corporation is set to gather public input at hearings scheduled for Valentine’s Day, February 14, 2017, and March 14, 2017, and use that to help in formulating a draft map dividing the city into either four or five districts. At present, Chino Hills is one of ten of San Bernardino County’s 24 cities where the mayor is not directly elected by the citizenry but rather chosen by the city council from among its own members. A decision therefore must be made as to whether Chino Hills will continue to elect five members of the council from five separate districts or whether it will elect a mayor at large while electing four council members from four separated districts. The electoral map for Chino Hills, consisting of either four or five districts, is set to be unveiled at a public hearing planned for April 11, 2017. Additional hearings on the draft map are planned for May 2 and May 25. The council intends to vote on a finalized district map on June 27 and anticipates adopting it at its July 11.
This will put districts in place well before the next general municipal election in Chino Hills in November 2018.