By Mark Gutglueck
Faced with an ultimatum from a Northern California-based lawyer calling for Victorville to alter the method by which its political leaders are elected, the four current members of the Victorville City Council this week gave approval to a gerrymandered city electoral ward map that advantages them politically over the next two election cycles and potentially over the next five council elections if they continue to seek reelection.
Earlier this year, Walnut Creek-based lawyer Scott Rafferty, in the capacity of the legal representative of Neighborhood Elections Now, a front group that is an extension of Rafferty’s law firm, threatened Victorville with a lawsuit under the auspices of the California Voting Rights Act if it did not dispense with its at-large voting system and adopt a ward or by-district voting map. The at-large voting system the city has used since its inception as an incorporated municipality in 1962, Rafferty alleged, has been “diluting the influence of Latino voters.”
Rafferty made that charge despite the consideration that three of the city’s five most recently elected council members are Latinas, that one of the council members is an African-American woman and thus a member of another “protected minority” under the California Voting Rights Act and the Federal Voting Rights Act, and a single member of the city council is a Caucasian woman.
Moreover, prior to the current crop of elected officials on the city council, Victorville had previously demonstrated itself, along with the City of Colton, as one of two municipalities in San Bernardino County where the long dormant Hispanic political giant had awoken. Throughout the 1990s and the first decade of the Third Millennium and into the 2010s, Victorville had proven to be one of the most politically stable of the county’s 24 cities and incorporated towns, measured in terms of changeover on the city council. Nevertheless, in that timeframe, Victorville, with the single exception of Colton, had the most inclusive and diverse city/town council in the county racially and ethnically. From 1992 onward, in addition to electing two African-Americans to the city council – James Busby and Leslie Irving – the council was populated with eight Latinos/Latinas: Felix Diaz, Rodolfo Cabriales, Angela Valles, Gloria Garcia, Eric Negrete, Blanca Gomez, Rita Ramirez and Elizabeth Becerra.
Beginning in 2014, a group of opportunistic attorneys – R. Rex Parris, Kevin Shenkman, Milton C. Grimes and Matthew Barragan – utilizing elements contained within the California Voting Rights Act ostensibly intended to counteract racially-polarized or ethnically-polarized voting, sought major paydays by threatening to file or actually filing lawsuits under the provisions of the California Voter Rights Act against a number of cities. Parris, Shenkman, Grimes and Barragan surveyed the San Bernardino County landscape and selected what they considered to be the political subdivisions most vulnerable to such suits, those being 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. They sent letters demanding that Highland, Redlands, Chino, Chino Hills, Upland, Ontario, Rancho Cucamonga, Fontana, Hesperia, Apple Valley, Barstow, Yucca Valley, Big Bear, Yucaipa and Twentynine Palms move to by-district elections, even though Chino, Chino Hills, Upland, Ontario, Rancho Cucamonga, Fontana, Hesperia and Barstow had histories and in some cases significant histories of electing protected minority members to their respective city or town councils. Parris, Shenkman, Grimes and Barragan could be bold in making those threats because under the California Voter Rights Act there is no penalty for initiating a spurious legal action. While with virtually every other type of lawsuit a plaintiff who does not prevail is subject to having to pay the legal fees of the defendant, the California Voting Rights Act conferred upon the plaintiffs in cases brought under its provisions immunity from such financial responsibility. Even though the plaintiff[s] in an action filed pursuant to the California Voter Rights Act stand[s] to recover from the defendant city or town 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 plaintiffs 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. Layered into the California Voter Rights Act was a provision that for making such a demand by letter upon a city to make a transition to by-district elections, an attorney is eligible to claim and then receive a $30,000 to $45,000 fee from the city for merely having written the letter lodging the request for the election transition without either side going to court, if the city agrees to such a course of action within 45 days of receiving the letter. This ploy, resulting in a lawyer or law firm standing to make $30,000 to $45,000 for what is the relatively minor assignment of writing a letter, triggered the spate of election transition demands that occurred not only in San Bernardino County but elsewhere in California in 2014 as law firms up and down the state took stock of the opportunity the California Voter Rights Act afforded them in this regard. The only possible downside to an attorney contemplating the filing of a lawsuit against a city or town under the California Voter Rights Act consists of the possibility of not being paid for his/her efforts in filing such a suit if that action ultimately is unsuccessful.
Neither Parris, Shenkman, Grimes nor Barragan undertook an effort to force Victorville to change its at-large election system to a by-district one because they understood that if they had to go to trial they could not possibly prevail given Victorville’s history of electing members of protected minority groups to serve on the city council.
Earlier this year, Rafferty was contacted by Victorville Councilwoman Blanca Gomez, who asserted that Victorville has consistently exhibited not only a racial bias in the manner in which it conducts itself and hires staff members, but that the city is a hotbed of racism. In carrying out his survey of the situation, Rafferty noted that Victorville was one of only six of San Bernardino County’s 24 municipalities that still utilized an at-large voting process.
On August 12, 2021, Rafferty, claiming he was representing Neighborhood Elections Now along with “individual Latino electors residing in Victorville,” wrote a letter to Victorville officials asserting Victorville’s existing at-large election system violated the California Voting Rights Act by “diluting the influence of Latino voters.” He 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.”
Rafferty maintained he was prepared to demonstrate that the city continuing with its at-large voting system would “impair the ability of a protected class, as defined, to elect candidates of its choice or otherwise influence the outcome of an election.” This, he said, gave a litigant such as Neighborhood Elections Now standing to force the city to adopt a district voting system. 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.
At that point, Councilwoman Rita Ramirez, who had undergone three successive and progressive amputations of her left foot, ankle and leg in 2020 and had therefore not been able to physically attend city council meetings, was removed from office in March 2021 as a consequence of action initiated by Councilwoman Liz Becerra. The council was thereafter unable to agree to a selection to replace Ramirez. Thus, as of August, Rafferty was prepared to contend that the 50 percent Hispanic composition of Victorville’s city council was below the 55.5 percent of Victorville’s population identified as Latino.
At the same time, however, the city was in a position to demonstrate that in the previous two election cycles during which the composition of the city council had been determined, in 2018 and 2020, three of the city’s five council members elected or reelected – or 60 percent – were Hispanic, those being Ramirez, Gomez and Becerra.
In the aftermath of the city having received Rafferty’s letter, in a report to the city council dated September 27, Victorville City Attorney Andre deBortnowsky 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.”
Given the disadvantage that cities in California must function under when litigating matters brought under the California Voting Right Act and the elapsing of the 45-day window for the city to respond to Rafferty’s demand letter, deBortnowsky recommended that the city merely throw in the towel. He told the city council it should “adopt [a resolution prepared for the September 27 council meeting] 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.”
The city council followed deBortnowsky’s recommendation.
Thereafter, essentially, Rafferty was able to claim victory and arrange to collect his $30,000 to $45,000. Having achieved that goal, despite his declaration that he had challenged and was seeking to eradicate what he considers to have been hitherto an unfair and racist at-large election process, he allowed the city to take control of the process of determining how the city’s electoral districts were drawn. At that point, Rafferty’s claimed high-minded intention of ensuring that the politically disenfranchised protected minority community of Victorville will get a fair shake at election time was out the window. Driving the process of determining the city’s new districts fell into the hands of the city council, the members of which had a personal stake in how the city’s district map would be drawn. Having risen to the top of the political heap on the Victorville City Council by means of what Rafferty maintained was the unfair and long-existing at-large election process, the incumbents seized the opportunity Rafferty had provided them to give themselves an overwhelming advantage, which will in all likelihood disenfranchise non-incumbents and those who would vote for those non-incumbents, when the current members of the council must next stand for election.
Statistically, incumbents fare far better in election than do their challengers. Additionally, incumbents hold a stark advantage over their challengers when it comes to raising funds to conduct an election or re-election campaign.
Rather than drawing up the new districts using a random approach or geographical and demographic logic, the council created a city district map in which each of the four incumbent members of the Victorville City Council resides in a different newly-drawn council district. This ensures that none of the council members will need to run against one another, and that in 2022 and 2024, each will have the advantage of running as an incumbent.
Equally remarkable, the drafting of the city’s district map was done such that the current terms to which the existing council members were elected at-large in 2018 and 2020 will end in accordance with the elections in the districts into which those council members have been placed.
The city’s electoral map was drawn making District 1 the city’s easternmost lying political subdivision, extending to Victor Valley College, Green Tree Golf Course, and southeast portion of Old Town. District 2 comprises the southwest corner of the city, overlaying both sides of Highway 395, the so-called Golden Triangle which lies between the I-15 Freeway to the east, Highway 395 to the west and Bear Valley Road to the north, along with Eagle Ranch and Sunset Ridge. District 3 includes the lion’s share of Old Town and the neighborhoods surrounding Hook Park. District 4 encompasses the areas surrounding the Victor Valley Mall. District 5 lies at Victorville’s northern end and, as the least densely populated expanse within the city, is the largest district geographically, including Southern California Logistics Airport, the frontier bordering Adelanto and its sphere of influence, the prison and the environs of Village Drive.
None of the districts has more than a single incumbent councilwoman living within its confines. Councilwoman Gomez resides in District 1. Mayor Jones lives within District 2. Councilwoman Becerra lives in District 3. Councilwoman Irving lives in District 5.
Council District 2 and Council District 4 are scheduled to have elections in 2022, when the current at-large term for Mayor Jones, who lives in Council District Two, is scheduled to expire in 2022, as is the term for former Councilwoman Ramirez. Equally significant is that elections are scheduled to take place for the Council District 1, Council District 3 and Council District 5 positions in 2024, the same year that the current at-large terms of councilwomen Gomez, Becerra and Irving are set to expire.
A calculation made by the Sentinel is that the statistical probability that all four of the current members of the council would end up in her own district, separate from the other members of the council combined with all four of the current members of the council being placed into districts where the elapsing of their current at-large terms would correspond across the board with the elections for the respective districts each lives in occurring naturally if the districts had been randomly drawn is 0.1953125 percent, that is one out of 512. The implication is that the districting that took place in Victorville was calculatedly and deliberately carried out, and the districts gerrymandered in such a way that benefited the four incumbent councilwomen, guaranteeing that they would not need to run against one another, and would confer on them more fully the advantage of being incumbents, which includes an advantage in fundraising over non-incumbents in their reelection races in 2022 and 2024, if indeed they intend to seek reelection. All four have given indication they intend to seek reelection.
In two separate emails to Rafferty, the Sentinel sought from him why he felt it expedient to alter the City of Victorville’s electoral process from an at-large system to a by-district one when adequate representation of the Hispanic population had manifested organically under the city’s current at-large electoral system.
Moreover, the Sentinel asked Rafferty how it was and why it was that his stated objective of ensuring a fair electoral process for the politically disenfranchised protected minority community of Victorville had been abandoned in favor of creating an electoral map that favors or otherwise advantages the city’s current political establishment.
Rafferty ducked the first question, in doing so essentially conceding that adequate and fair representation of the residents of Victorville and its constituent protected minorities already existed.
In his answer to the second question, he acknowledged that his intent had evolved to accommodating the incumbents by gerrymandering for them safe districts in which to seek reelection to the council. Significantly, he said he had reached that accommodation with the incumbents because they had come to accept his goal of creating, with the fifth position on the council – that being the one representing District 4 – an office that would very likely be filled with a Latino.
“The key purpose of this map was to create an open seat, vacated by Ramirez, in an area that had been unrepresented for some time,” he told the Sentinel in writing. “The map was refined not only to have high nominal Latino voting strength (adult citizens), but I also studied turnout in the gubernatorial and presidential cycles. The map isolated low-turnout Latino neighborhoods from higher-turnout neighborhoods that could control the election even if they had less population. I also believed that the powerline and I-15 (including the business route) distinguished different demographics for much of their route. I studied Victorville neighborhoods and had already kept Brentwood together. Except for one unpopulated, commercial block, I also accommodated Mayor Jones’ desire to keep Eagle Ranch together.”
In providing his response to the Sentinel, Rafferty consistently disregarded the consideration that both Hispanics and African-Americans were already represented on the council, per the results of the two most recent elections, in numbers/percentages greater than the numbers/percentages of Hispanics and African-Americans within Victorville’s population.
“Turnout is a problem in many Latino neighborhoods,” Rafferty said. “In fact, depressed minority turnout resulting from chronically uncompetitive elections and a relative absence of any efforts to incorporate and mobilize low turnout neighborhoods is the principal evil addressed by the California Voting Rights Act, along with the consequence that the most needy areas lack a dedicated voice on the city council. In addition to isolating low turnout precincts, the open seat contains significant black voters to be effective, if and only if the Latino community registers and votes at higher levels.”
Rafferty straight out admitted that when the map at last came together, it was widely recognized that the current members of the council were going to be provided with an advantage going into the upcoming 2022 and 2024 elections. Unhesitatingly, he acknowledged that such baldly preferential treatment of those already in office was okay with him, since it furthered his overarching goal of virtually guaranteeing the Victorville City Council will be composed of Latino and African-American politicians.
“Before proposing the sequence, I had several blunt conversations with the minority community,” Rafferty said. “Democracy is not easily engineered. Maps do not guarantee success. We also looked at the difference in turnout between gubernatorial and presidential elections. [California Elections Code] Section 10010(b) requires that the sequence give special considerations to the purposes of the California Voting Rights Act. The input from the minority community was overwhelming that they were ready and able to mobilize turnout in the open seat, and did not want to wait until the presidential election. Once the council respected the minority community’s desire to place the open seat in 2022, which was very critical, Section 10010(b) required the sequencing to respect the interests of the incumbents, all of whom wanted to seek reelection at the conclusion of their current terms.”
Rafferty indicated he saw no problem with the city consulting with Redistricting Partners and its principal, Paul Mitchell, to carry out demographic and other advisory work with regard to the formation of the electoral districts. Paul Michell is a political consultant active in hundreds of local election campaigns.
“It is always an honor to work with Paul Mitchell, who is the premier demographer in our state,” Rafferty said. “Most of his proposed maps did not pair incumbents, and he drew them before he knew where any incumbents live.”
Rafferty denied that he had undertaken the effort to force Victorville into a by-district voting system merely to collect the $45,000 attorneys are entitled to under the California Voting Rights Act for initiating such a process without taking the matter to trial.
“The notion that I am ‘mercenary’ is far-fetched,” he told the Sentinel.
By Mark Gutglueck