Lawyer Cozens Victorville Into District Voting

Threatened with a lawsuit brought under the auspices of the California Voter Rights Act it very likely would have prevailed upon had it chosen to go to court, the Victorville City Council this week opted out of having the city defend itself against charges that a number of its voters have been and will continue to be disenfranchised.
Instead the city will arrange to end its 59-year tradition of holding at-large elections and move to an electoral ward system through which its council members will represent what has yet to be determined will either be one-fourth or one-fifth of the city’s residents.
Victorville had survived what was a wave of transitions to by-district elections in San Bernardino County over the last five years, in which Chino Hills, Chino, Upland, Rancho Cucamonga, Fontana, Redlands, Highland, Hesperia, Yucca Valley, Barstow, Twentynine Palms and Yucaipa ceased holding at-large city council elections. In at-large contests, would-be and/or incumbent civic leaders are deemed eligible to compete for office by virtue of simply living within the city limits and being registered to vote. All of those eligible candidates run in the same race to select the number of positions on the council up for election that particular year. After being challenged, Chino Hills, Chino, Upland, Rancho Cucamonga, Fontana, Redlands, Highland, Hesperia, Yucca Valley, Barstow, Twentynine Palms and Yucaipa formed districts or wards, such that the only individuals eligible to run for office to represent any particular ward or district must be a resident of that ward or district, and residents of each ward or district can vote only in the balloting for the district in which they live and not in any city council race outside their district, with the lone exception being those cities which hold mayoral elections. Mayors are yet chosen in at-large races.
The root of the change being foisted upon Victorville lies within the California Voting Rights Act, passed by the California Legislature in 2001.
Under the California Voting Rights Act, 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. Thus, if any one of those protected minorities make up more than 20 percent of a 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. Polarized voting can also be established as existing when a candidate who is a member of a protected minority receives more votes in a precinct wherein there is a high concentration of voters who are members of the same protected minority than he or she receives in a precinct where the predominate number of voters are not members of the same same protected minority as the candidate. Protected minorities include African-Americans, Hispanics, Native Americans, Pacific Islanders and Asians.
The California Voting Rights Act conferred upon the plaintiffs in cases brought under its provisions an overwhelming advantage in that though the plaintiff[s] stand to recover from the defendant all money expended or owed in the matter to pay for the plaintiff’s or plaintiffs’ attorney’s efforts if the suit succeeds either in whole or part, the cities or towns sued under the voting rights act are not eligible to recover their fees if they prevail in the litigation by succeeding in demonstrating that racially-polarized or ethnically-polarized voting has 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 have to defray their own legal expenses if they chose to put on a defense at trial. Thus, even if a city prevails, it sustains unrecoverable legal costs, and if it loses, it stands to suffer costs of tens of thousands of dollars, hundreds of thousands of dollars and perhaps, depending upon how spirited of a defense the city puts on and the outcome of the legal proceedings, beyond a million dollars in legal fees to be paid to the prevailing party.
The California Election Code provides a city alleged to have engaged in racially-polarized voting a so-called “safe harbor” process by which it can simply refuse to contest the accusation of racially-polarized voting after receiving a letter from a prospective plaintiff charging it with being in violation of the California Voting Rights Act, make known its intention to transition to district-based elections by adoption of an ordinance within 45 days of having received the letter, sidestep the lawsuit, and pay the attorney who sent the letter $30,000 to $45,000.
Beginning in 2014, a bevy of opportunistic attorneys seeking a major payday through threatened or actual lawsuits under the California Voters Rights Act to ostensibly counteract racially-polarized or ethnically-polarized voting turned their attention to San Bernardino County.
Working as a team, 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 or complete lack of elected Hispanic officeholders in those jurisdictions, even though they had a substantial Latino population.
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. Thereafter, a lawsuit was filed July 18, 2014 in San Bernardino Superior Court by Parris, in conjunction with the law firm of Shenkman & Hughes and 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 socioeconomic-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 district or ward systems, with those municipalities in many cases paying the lawyers the $30,000-to-$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 council members 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. Nevertheless, in the case of Chino Hills, the manner in which the districts were drawn up disadvantaged and disenfranchised a one-time Hispanic member member of the city council Roseana Mitchell-Arrieta. And ultimately, Johsz was himself elected to the council as the representative of one of the districts he had drawn up.
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 $30,000-to-$45,000 payments that came their ways from the cities.
In the meantime, a handful of San Bernardino County cities had eluded the efforts of attorneys to bring about their conversion to by-district elections. Among those was the City of Victorville, which over the previous three decades had organically evolved to embodying, without any outside interference or the intervention of the California Voters Rights Act, both the spirit and intent of what is inherent in the California Voter Rights Act.
Beginning in 1991 and by 2014, the Victorville City Council counted among its members Felix Diaz, Jim Busby, Rudy Cabriales, Angela Valles, Gloria Garcia and Eric Negrete, all of whom qualified as protected minorities as defined by the California Voter Rights Act. Thereafter, again under the at-large voting system in place, Blanca Gomez, was elected to the council in 2016 and reelected in 2020, Rita Ramirez was elected to the city council in 2018, and Elizabeth Becerra and Leslie Irving were elected to the city council in 2020. Gomez, Ramirez, Becerra and Irving are all protected minorities under the California Voter Rights Act. After the 2020 election, all five members of the city council were women; and four of its five members – Gomez, Ramirez, Becerra and Irving – were protected minorities.
In the late winter of 2021, Becerra, a member of a protected minority, led the charge in having Ramirez, a member of a protected minority, removed from the council for what Becerra alleged was Ramirez’s failure to maintain her residency in Victorville. After Ramirez, a Democrat, had been removed from the council, the remaining members of the council – Gomez and Irving, who are Democrats, and Becerra and Mayor Debra Jones, who are Republicans, could not come to an agreement on an appointment to replace Ramirez. The position has remained unfilled since Ramirez was deposed in March.
On August 12, 2021, the City of Victorville received a certified letter from attorney Scott J. Rafferty, based in Walnut Creek, some 401 miles from Victorville. Rafferty claimed to be representing the group Neighborhood Elections Now along with “individual Latino electors residing in Victorville.” In his letter, Rafferty stated that Victorville’s existing at-large election system violated the California Voting Rights Act by “diluting the influence of Latino voters,” and threatened litigation if the city did not adopt a district-basted electoral system.
“The life experience and values of Latinos as a group (and of other minorities) is often distinct from the rest of the electorate,” Rafferty propounded. “Districting equalizes the voting power of minority neighborhoods.”
Because, Rafferty asserted, “the group of Latino candidates who ran in the 2018 election were disproportionately preferred by their own community,” proof existed that Victorville had, he claimed, engaged in racially polarized voting.
Without acknowledging or in any way mentioning that of the five most recently elected members of the city council three are Latina and one is an African-American woman, Rafferty insisted that “a single high-Latino district improves representation for Latinos throughout the city. Eliminating winner-take-all slates makes the council more representative of all constituencies.”
Again, without making any reference to the consideration that three of the city’s five most recently elected members of the council are Latina, Rafferty wrote, “[I]t is clearly possible to draw at least one council district in which Latinos are a majority of eligible voters.”
Rafferty called upon the city to immediately draw up an electoral district map and move to by-district elections.
Moving into dictatorial mode, Rafferty wrote, “The city has 45 days from its receipt of this letter to resolve its intent to comply before the next regular election in November 2022, and any special elections that may occur after the map is drawn.”
With the 45th day after the letter had been delivered to City Clerk Charlene Robinson falling on September 26, the city council was a day late in getting to the matter on Monday, September 27.
In his report to the council, City Attorney Andre de Bortnowsky wrote, “Although the city has asserted and believes that Mr. Rafferty’s allegations of a California Voting Rights Act violation lack evidentiary support for any Latino or other racially polarized voting in the city, absent the city’s adoption of a resolution of intention to initiate the transition to a district-based electoral system tonight, Mr. Rafferty can embroil the city in expensive litigation to force a district-based electoral system, leaving the city’s electoral system in the hands of a court. [A]ccordingly, the city council must decide tonight whether to adopt the resolution of intent.”
de Bortnowsky recommended that the city council “adopt [the resolution] declaring its intention to transition from at-large to district-based elections for members of the city council under Elections Code Section 10010. The basis for recommending adoption of [the resolution] is not a concession or admission that the city has or would ultimately be found to have violated the California Voting Rights Act. Instead, the recommendation stems from a determination that the public interest is better served, and taxpayer dollars better spent, by making a voluntary transition to by-district elections, given the uncertainty in defending such litigation and the extraordinary cost of such a lawsuit, even if the city were to prevail.”
de Bortnowsky said the city should be prepared to bear the cost of hiring a demographer and other consultants needed to draw the electoral district map, conduct public hearings, engage in community outreach, prepare and publish notices and related district map materials for the hearings related to the drawing of the districts and cover the cost of paying Rafferty $30,000.
de Bortnowsky said the city will need to meet a 90-day deadline for the adoption of an election district map and election sequence by means of an ordinance on or before December 27, 2021, unless Rafferty finds it in his soul to allow the city to perform under a 180-day deadline, such that the city will need to adopt the district-voting ordinance on or before March 28, 2022.
The city council, after hearing from residents on Monday night during the hearing relating to the item pertaining to the action Rafferty is forcing the city to take, adopted a resolution of intent by a 4-to-0 vote.
Unknown at this point is whether the city will form five districts or wards with each embodying as close as possible one fifth of the city’s 123,251 population with the selection of the mayor continuing to rotate among the council’s five members or whether Victorville will form four council districts, each composed of one-fourth of the city’s residents, augmented by a mayor’s post to be filled by a candidate elected at-large.
In response to questions emailed to him by the Sentinel, Rafferty, without being specific, implied that at least one of the Latino council members in Victorville over the last three decades – Diaz, Cabriales, Valles, Garcia, Negrete, Gomez, Ramirez and Becerra – did not adequately represent the members of the same protected minority of which he or she was himself or herself a member.
“Not every Latino office-holder on your list was an authentic candidate-of-choice of the Latino community,” he said, without explaining how he knew that to be the case or even how it was possible that it was the case.
Pushing the City of Victorville toward by-district elections even though four-fifths of those most recently elected are members of a protected minority under the California Voting Rights Act did not constitute a perversion of the intent of the California Voting Rights Act and was in some measure justified by the council’s vote to remove Ramirez from the council, Rafferty said.
“It is curious that you include Rita Ramirez, who received a vote from almost every Latino casting a ballot in 2018, but was removed without the benefit of a charter provision, ordinance or quo warranto proceeding, and was not replaced within the timeframe required by state law,” Rafferty said. “This is not evidence of equal influence by the Latino community.”
Rafferty made no reference or acknowledgment that Becerra was a prime mover in the removal of Ramirez from office.
Nonetheless, he implied that the current incumbents, three-quarters of whom are members of protected minorities and one-half of whom are Hispanic, were in some fashion responsible for the continuing political disenfranchisement of Latinos in Victorville.
“[T]he incumbents… know my clients’ concern about the continuing failure to replace member Ramirez and the prospect that an incomplete council could draw lines for an entire decade, especially since the immigrant communities of southeast Victorville are not represented,” he said.
Rafferty declined to identify his clients in Victorville, but did say that some of them were among those who spoke before the city council on September 27 urging the council to adopt a by-district voting system.
“Because of the potential for retaliation, I generally do not disclose individual clients until and unless it is necessary to sue,” he said. “But community support for districting was almost unanimous at the last council meeting.”
Rafferty offered something of a defense for seeking to move Victorville to by-district elections, even though four-fifths of those most recently elected are members of a protected minority as defined by the California Voting Rights Act.
“I am very selective in the jurisdictions to which I am willing to send notices,” he said. “Victorville is the largest city in California with a significant minority community that still elects at-large.”
As to the recurrent, indeed almost universal, pattern of gerrymandering protecting the political status quo and incumbents that occurred in San Bernardino County with the switch to by-district elections in the last half-decade, Rafferty said, “The voters in jurisdictions that I work with have a pretty good track record for increasing the number of minority officeholders and minority candidates-of-choice. This is about voters, not incumbents or candidates.” Then, without saying how he had information to make such a pronouncement, Rafferty claimed, “When officeholders who are members of a protected class are defeated in district elections, it is usually because they are not the minority’s candidate of choice. But you can’t engineer democracy, and minority communities are not always instantly empowered. It can take a few cycles to see the effects of this reform.”
-Mark Gutglueck

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