By Mark Gutglueck
More than a half decade after their collective efforts resulted in 14 of San Bernardino County’s cities and towns transitioning from the at-large model they historically used in conducting their municipal elections to by-district voting, three of the four attorneys who forced that change are reluctant to address the negative aspects that alteration has had overall on the electoral process.
This election season, with eleven city or town council incumbents throughout San Bernardino County facing no opposition, only one of those four lawyers was willing to go on the record with regard to that circumstance and address whether the move to create subdivisions within several of San Bernardino County’s municipal jurisdictions had damaged rather than enhanced the democratic process.
All four of those attorneys – R. Rex Parris, Milton Grimes, Kevin Shenkman and Matthew Barragan – used a provision of the California Voters Rights Act to ensure, they maintained, that so-called protected minorities were not disenfranchised in the political process. That provision allowed them to allege that what is referred to as racially or ethnically polarized voting had occurred in certain cities or towns, and to then request that the city or town in question revamp its voting system such that wards or voting districts were created in which the residents of that ward or district would have exclusive voting rights to elect from within that ward or district a representative to the city council. If a city without resistance simply conformed with the request and adopted a by-district voting system, the attorney making the request was then entitled to recover from the city a $45,000 fee for having brought the city into what was characterized as compliance with the goals of the California Voting Rights Act.
If any of those towns or cities resisted the request, the attorney or attorneys representing an individual of standing challenging that particular municipal entity could then file suit under the terms of the California Voting Rights Act, and upon prevailing in demonstrating racially-polarized or ethnically-polarized voting in the city or town had occurred, be eligible to recover the entirely of their legal fees.
In 2001, the California Legislature enacted the California Voting Rights Act, under which a plaintiff or plaintiffs can file legal action against a governmental jurisdiction alleging polarized voting has taken place in its past elections and seek the remedy of having that jurisdiction switch from at-large elections to ones involving ward or district systems. The theoretical justification for having a city or governmental jurisdiction form such districts is the perceived likelihood that it will create political subdivisions in which the election of a member of an ethnic or racial minority is more likely to take place than in an at-large election. Upon proof being presented that such polarized voting exists, the courts will then require that the governmental entity in question adopt the ward/district system and require that the governmental entity pay the legal fees for the attorney or attorneys representing the plaintiff[s].
Polarized voting can be defined as a circumstance in which the number of registered voters belonging to a protected ethnic or racial minority within a specific jurisdiction exceeds, in comparison to the total number of registered voters in that jurisdiction, the ratio represented by a single member of that city’s or town’s council to the total number of members of that particular panel, when no members of that protected minority are counted among that council’s members. Protected minorities include African-Americans, Hispanics, Native Americans, Pacific Islanders and Asians. Thus, if any one of those protected minorities make up more than 20 percent of that municipality’s population but that city’s or town’s five-member council does not feature a member of that minority, then racially-polarized or ethnically-polarized voting is said to have occurred in that jurisdiction.
The California Voting Rights Act conferred upon the plaintiffs in such cases an overwhelming advantage in that though the plaintiff[s] stood to gain all money expended or owed in the matter to pay for the plaintiff’s or plaintiffs’ attorney’s efforts, the cities or towns sued under the voting rights act were not eligible to recover their fees if they prevailed in the litigation by succeeding in demonstrating that racially-polarized or ethnically-polarized voting had not occurred in their jurisdictions. Thus, the plaintiff[s] and the lawyers representing them in these legal actions brought under the California Voting Rights Act run no risk. On the other side of the plaintiff/defendant divide, the cities challenged in this way had to defray their own legal expenses if they chose to put on a defense at trial. Thus, even if a city prevailed, it sustained unrecoverable legal costs, and if it lost, it stood to suffer costs of hundreds of thousands of dollars and perhaps beyond a million dollars in legal fees to be paid to the prevailing party. By the time opportunistic attorneys seeking a major payday through threatened or actual lawsuits under the California Voters Rights Act filed to ostensibly counteract racially-polarized or ethnically-polarized voting turned their attention to San Bernardino County, a handful of California cities elsewhere that resisted challenges made to their election systems under the California Voting Rights Act had already been unsuccessful in their legal defenses and were forced by the law and the courts to pay substantial amounts to cover those legal fees. In a number of San Bernardino County’s municipalities, city officials and residents where racially polarized voting had been alleged expressed umbrage at that suggestion and denied the assertions that there was a systemic or institutionalized racial or ethnic bias built into their political establishments. Nevertheless, a trio of lawyers – Lancaster-based R. Rex Parris, Malibu-based Kevin Shenkman and Los Angeles-based Milton C. Grimes – surveyed the San Bernardino County landscape and selected what what they considered to be the county’s most vulnerable jurisdiction among a handful of cities perceived to have foreclosed minority rights because of the relative scarcity of elected Hispanic office holders, despite a substantial Latino population.
Thus, Parris, Shenkman and Grimes settled upon the City of Highland, where despite more than 39 percent of the residents of that city being Latino, no Hispanics were serving on the city council. Highland thus became the first San Bernardino County city served with a demand that it alter the way it elects its council members. That lawsuit was filed July 18, 2014 in San Bernardino Superior Court by 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.
Thereafter, Parris, Shenkman, Grimes and Matthew Barragan, who was then the staff attorney representing the Mexican American Legal Defense Fund known by the acronym MALDEF, threatened lawsuits under the California Voter Rights Act against the cities of Barstow, Big Bear Lake, Chino Hills, Chino, Fontana, Hesperia, Rancho Cucamonga, Redlands, Twentynine Palms, Upland and Yucaipa, as well as the towns Apple Valley and Yucca Valley. Despite the consideration that Barstow, Chino Hills, Chino and Redlands historically had fielded or at that point included Hispanic members on their city councils and that Upland, Rancho Cucamonga and Fontana historically or at that point had both Latino and African-American members of their city councils, all of those cities and all of those towns complied with the demands for shifts to ward systems, with those municipalities in many cases paying the lawyers the $45,000 cost those attorneys were entitled to under the California Voters Rights Act and which those attorneys sought for forcing those cities and towns into compliance.
At that point, Parris, Shenkman, Grimes and Barragan checked out of the process, whereupon the cities or towns used consultants such as the National Demographics Corporation to draw up district or ward lines. Chino Hills, after consulting with the National Demographics Corporation, opted to utilize a different map, one drawn by two of that city’s residents, Brian Johsz and Richard Austin.
In case after case, the cities and towns adopted district voting or ward maps that were gerrymandered to provide the incumbent councilmembers an advantage by placing them into districts that did not include other incumbents, and by timing the elections in such a way that their districts held elections at the end of the electoral cycle terminating with the elapsing of the close of the term the incumbents held as a result of their most recent at-large elections. One exception to this was in Chino Hills, where the Johsz/Austin map put three of the incumbents in separate districts and created two other districts, including one in which none of the then-current council members resided and one in which two members were living.
In none of those cases where the gerrymandering took place did Parris, Shenkman, Hughes, Grimes or Barragan raise any objections to how those district lines were drawn, even when they appeared to perpetuate the racially-polarized or ethnically-polarized voting that their threatened lawsuits were ostensibly aimed at curing.
Many of those observing that element of what occurred in those 13 cities that were forced into by-district elections after the lawsuit between Garrett and Highland concluded have independently remarked that it appears that Parris, Shenkman, Grimes and Barragan were not truly committed to redressing so-called polarized voting but rather shaking cities down in looking for a lucrative payday on the cheap by threatening a lawsuit and then accepting the $45,000 payment the cities were obliged to make to them upon the adoption of a by-district voting policy.
This year, the degree to which the mass move toward ward/district electoral systems in San Bernardino County has undercut the democratic process that change was ostensibly intended to boost was evinced in eleven separate elections in Colton, Highland, Apple Valley, Chino Hills, Hesperia, Redlands and Twentynine Palms where eleven incumbent councilmembers up for election in those races are not being challenged. In the cases of Highland, Apple Valley, Chino Hills, Hesperia, Redlands and Twentynine Palms, those cities and town are holding their first or second by-district election. For decades, Colton has had a by-district election system.
Highland Councilman Jesse Chavez, who was first elected to the council in 2016 when the city transitioned to by-district elections, is unopposed this year in his pursuit of reelection in Highland’s District 1. Highland Councilwoman Penny Lilburn, who has been on the council since 2004 and has served stints as mayor as well as mayor pro tem in the past, will serve four more years representing District 3 automatically, as no one has come forward to challenge her. Larry McCallon, who is currently serving as Highland’s appointed mayor and has formerly held that post as well as that of mayor pro tem, drew no opposition in District 5.
Apple Valley Councilman Art Bishop will accede to another term on the town council, this time representing Apple Valley’s residents in the newly-formed Second District. This is the first year that Apple Valley has held by-district elections. No one in the Second District emerged to challenge Bishop, who previously served as Apple Valley mayor and is retired as the fire chief of the Apple Valley Fire Protection District, which serves as Apple Valley’s fire department. Similarly, Larry Cusack, who was chairman of Apple Valley’s planning commission before he was elected to the city council and subsequently served a term as mayor, was given a free pass in this year’s contest, in which he was due to stand for election in Apple Valley’s First District.
In Chino Hills, Cynthia Moran, who has previously served as mayor, has no opposition in that city’s District 5. In Hesperia, no one is challenging Brigit Bennington, who was appointed to the District 4 council position last year after the city council cited what it said were residency violations to forcefully remove Jeremiah Brosowske, who had eked out a narrow victory over Bennington in the November 2018 election. In Colton, neither Kenneth Koperski, the appointed incumbent in the city’s Third District, nor Isaac Suchil, the elected incumbent in the Sixth District, have opponents. In Redlands, which experimented with district elections in the 1990s and returned to at-large elections only to reinitiate by-district elections in 2018, incumbent Eddie Tejeda attracted no one to contest him for the city’s northside District 2 seat on the council. In Twentynine Palms, incumbent Steve Bilderain, who was most recently elected at-large in 2016, in 2019 served as mayor and is now seeking election representing District 1, has no opponent.
Beginning three weeks ago, the Sentinel undertook a consistent effort to engage with Parris, Shenkman, Grimes and Barragan by telephone and through email or in person to ascertain from them their interpretations of the meaning and implication of the rash of uncontested elections in this year’s council races in San Bernardino County by which the incumbents are returning to office for four more years unopposed.
In emails sent to all four of the attorneys, the Sentinel asked if they believed a commonly expressed belief throughout San Bernardino County that the uncontested elections are an outgrowth of the mass move toward by-district or by-ward elections that took place across San Bernardino County over the last five years is accurate. Noting that Parris, Shenkman and Grimes had consistently maintained that the intention of their action in San Bernardino County, beginning with the Garrett lawsuit and moving forward, was to end racially-polarized or ethnically-polarized voting, the Sentinel inquired how it was that each of those attorneys as well as Barragan, who became involved in the election reform effort in San Bernardino County shortly after the other three attorneys took up that cause, then failed to act to prevent the cities and towns in question from gerrymandering the districts in a way that conferred an advantage on the incumbents then in office. The Sentinel sought from Parris, Shenkman, Grimes and Barragan whether they believed this gerrymandering, as some have asserted, undercut the reformist goal they were pursuing in pressing these municipalities to adopt by-district elections, and whether that gerrymandering is compromising the democratic process in that the drawing of the districts in a way that is favorable to the incumbents has resulted in nine uncontested elections this year alone in those cities and one of the towns where by-district elections previously did not take place. The Sentinel further inquired directly of the four lawyers why they had not acted, either individually or collectively, to prevent the gerrymandering.
The Sentinel sought from the four whether they believed that the proliferation of gerrymandered districts that followed in the aftermath of their election reform efforts rendered the election of protected minority candidates less likely rather than more likely. The Sentinel tried to elicit from Parris, Shenkman, Grimes and Barragan what their response would be to those who assert that in some cases what the by-district changeover did is actually make the election of protected minority candidates less likely.
The Sentinel asked each of the four attorneys whether, with the benefit of hindsight, they now wish that they had acted to prevent the gerrymandering that occurred in virtually every case where a San Bernardino County city or town adopted the by-district election model.
Additionally, the Sentinel asked if they had anticipated that moving to by-district elections would result in a significant number of elections that would go uncontested, and whether they believed a situation in which 11 council races throughout the county are going uncontested represents a diminution of the democratic process.
Each of the attorneys was queried as to whether he believed that a greater frequency of uncontested elections is a legitimate price that needs to be paid by the community to create the widespread regime of by-district voting and its hopefully consequent reduction in racially-polarized and ethnically-polarized voting.
The Sentinel asked each of the attorneys to cogently refute the assertion made by some that their intent in pursuing the change to by-district elections was mercenary in nature that was aimed more at ensuring they and in the case of Parris, Shenkman and Grimes their law firms and in the case of Barrigan his organization received remuneration for their efforts rather than achieving the ostensible goal of election reform, and that their individual and collective failures to prevent the gerrymandering that occurred as a consequence of the change to by-district elections in San Bernardino County is an indicator of that mercenary intent.
Neither Parris, Grimes nor Barragan, who is no longer affiliated with the Mexican American Legal Defense Fund and is now working as an assistant U.S. Attorney in Los Angeles, deigned to respond.
Shenkman told the Sentinel that he agreed that “Gerrymandering is bad. It is also unlawful in California – at the city level, it is contrary to Elections Code sections 21601 (general law cities) and 21620 (charter cities). You mention seven Inland Empire jurisdictions, of which we were involved in some but not all. We only had input into the district boundaries in one – Highland. The Highland districts were not gerrymandered. They also resulted in the first Latinos elected to the Highland City Council in the city’s entire history. I would say that is an unmitigated success. With respect to the other jurisdictions, even the ones in which we were involved in convincing the jurisdiction to adopt district elections, we were not involved in the drawing of the districts because nobody came to us with a credible and attractive case that the jurisdiction(s) violated those Elections Code sections; I’m not saying that the maps don’t violate those sections, I just don’t know.”
Shenkman elaborated, “As a more general matter, I would also agree that gerrymandering is a significant problem in California, and elsewhere. Thus far, the legislature has failed to give us the tools necessary to combat gerrymandering by local governments. They seem to have tried, but they have failed because they do not communicate with the people who will ultimately be responsible for enforcing the laws they pass. I would encourage the legislature to enact laws that actually have some teeth, so that we are in a position to combat gerrymandering when it occurs, and I’d be happy to help the legislature accomplish that.”
Shenkman said, “You mention that some unidentified people ‘point out that in some of the cases, the switch to by-district elections has made the election of protected minority candidates less likely rather than more likely.’ I don’t know who those people are, or what specific jurisdictions they think have made the election of minority candidates more difficult. What I do know is that all empirical studies demonstrate that district elections result in the election of more minority candidates. UC Riverside recently completed the largest and most comprehensive study of precisely this issue in California, and confirmed that district elections increase minority representation. (See Collingwood, L. & Long, S., Can States Promote Minority Representation? Assessing the Effects of the California Voting Rights Act. (Dec. 31, 2019) Urban Affairs Review). The paper is available at https://doi.org/10.1177/1078087419896854. I find this scientific empirical study to be far more credible than cherry-picked anecdotes by unidentified individuals who likely have an interest in maintaining the status quo.”
Moreover, Shenkman suggested, the phenomenon of candidates or incumbents running unopposed is nothing new.
“I think it is also disingenuous to suggest that elections in these jurisdictions were competitive before a switch to district elections,” he said. “They most certainly were not. Will the presidential election between [Donald] Trump and [Joseph] Biden be competitive in California in November? Of course not – everyone knows Biden will win by a large margin; the fact that the Republicans insist on having someone on the ballot does not make the election competitive in any substantive way.”
There is imperfection in the Democratic process, Shenkman said, because that is the nature of the beast.
“I would point out that social change does not happen overnight; and, while lawyers and judges can prompt that change and even accelerate that change, it takes a lot of effort ‘on the ground,’” he said. “We are proud to have given the people the tools to make change happen, and we look forward to continuing to see that change come to fruition.”
Lawyers Who Pushed District Voting Loath To Acknowledge Gerrymandering
By Mark Gutglueck