This year’s Chino Hills City Council District 1 race points up the moral quandary and practical conflict inherent in the California Voter Rights Act, as it is pitting the community’s longtime leading Hispanic politician against a man touted as Chino Hills’ great Asian political hope.
The California Voting Rights Act of 2001, which was framed with the intent of preventing the political disenfranchisement of minorities in the Golden State, encourages the use of by-district rather than at-large voting in local races for elected office.
The California Legislature in passing the act worked from the assumption that historically the state’s minority population had been underrepresented in elected offices at virtually all levels within California and that minority votes were being diluted in “at-large elections,” that is, in elections whereby representatives elected to represent the whole membership of a governmental body can live anywhere within that jurisdiction’s borders. The theory was that by creating voting wards within such jurisdictions – cities, incorporated towns, school districts, water districts, fire districts, community services districts, etc. – the minority vote would not be diluted in those areas or districts or wards where the minority voters were concentrated, and this would lead to the election of minority candidates to office.
As part of the strategy to overcome this “at-large election minority voter dilution,” the California Voting Rights Act made it easy to force local governments to dispense with at-large elections in favor of by-district voting. The California Voting Rights Act categorizes a host of ethnicities and races – including African Americans, Latinos, Native Americans, Asians and Pacific Islanders among others – as “protected minorities.” By alleging that certain categories of the population are either not participating in the democratic process or are not adequately represented by politicians who share their ethnicity or race, a lawyer can use the California Voting Rights Act to collect legal fees for his or her advocacy of such protected minorities.
By alleging that racially polarized voting had taken place in a city’s, town’s, district’s or any governmental agency’s election of its leadership, an individual voter or group of voters, or more often an attorney representing an individual voter or group of voters, can demand the political leadership in those jurisdictions shift to by-district or by-ward elections. If the political leadership does not comply with that demand, a legal action can be commenced to make a showing that the alleged polarized voting indeed is or was a reality. Upon such a demonstration, the California Voter Rights Act requires that the court order the transition to by-district voting.
The California Voting Rights Act confers upon the plaintiffs in such cases an overwhelming advantage in that though the plaintiff[s] stand[s] to gain or recover all money he, she or they expend in paying for his, her or their attorney’s efforts, 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 lawyer[s] 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 or towns 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 hundreds of thousands of dollars and perhaps beyond a million dollars in legal fees to be paid to the prevailing party.
From 2004 to 2009, the City of Modesto waged a legal battle in an effort to vindicate itself with regard to the charge that it was using racially polarized voting to keep Latinos out of office. It prevailed on multiple legal points, with a Superior Court judge ruling that elements of the California Voters Rights Act were unconstitutional in that they showed preference to minorities and the requirement for the city to pay attorney’s fees was an unconstitutional gift of money before elements of the ruling were struck down on appeal to the 5th District Court of Appeals. The matter was then appealed to the California Supreme Court on the claim that the act in several aspects allowed reverse racism and constituted unconstitutional affirmative action. The state Supreme Court declined to hear the case, returning it to the trial court, where the case ended in a settlement under which the city put the question of whether the city should utilize district voting to the city’s voters on a ballot measure. Despite suffering no clear legal loss and positing a case that the act in some respects constituted institutional and unconstitutional reverse racism, the city yet was required to pay out $3 million in fees for the plaintiffs’ lawyers.
The City of Palmdale’s resistance to a request lodged in 2012 that it move to by-district voting resulted in a lawsuit which was adjudicated in the plaintiff’s favor after three years, resulting in the city having to cover the plaintiff’s $4.7 million legal bill.
In 2018, the City of Santa Clara lost a similar suit and appealed that ruling, ultimately losing at the appellate level, whereupon it had to pay more than $3 million in the opposition’s legal costs, not including its own attorney’s fees.
Between 2014 and 2022, Lancaster-based attorney R. Rex Parris, Los Angeles-based lawyer Milton Grimes, Malibu-based barrister Kevin Shenkman, Northern California-based legal practitioner Scott Rafferty and Los Angeles-based solicitor Matthew Barragan, who has since gone to work for the U.S. Attorney’s Office, collectively generated for themselves over $7 million in legal fees by exploiting a provision in the California Voting Rights Act that entitles a lawyer seeking to promote so-called protected minority voter empowerment to bill the cities they engage with in that effort.
In 2013, Parris, Shenkman and Grimes opportunistically surveyed the San Bernardino County landscape and selected 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 locally despite the region’s substantial Latino population.
Thus, Parris, Shenkman and Grimes in 2014 settled upon the City of Highland, where despite more than 39 percent of the residents of that city being Latino, no Hispanics at that time 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. Highland responded by placing an initiative, Measure T, on the ballot asking the city’s voters whether they wanted to switch to by-district elections. When the city’s voters in November 2014 rejected Measure T, with 2,862 votes or 43.01 percent in favor and 3,793, or 56.99 percent opposed, Parris, Shenkman and Grimes proceeded with the lawsuit on behalf of Lisa Garrett, a resident of Highland who claimed to be politically disenfranchised because she was Hispanic.
Upon the matter going 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 Garrett’s assertion 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. For their efforts, Parris, Shenkman and Grimes experienced a substantial payday.
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, Chino Hills, Hesperia, Rancho Cucamonga, Redlands, Twentynine Palms, Upland and Yucaipa, as well as the towns of Apple Valley and Yucca Valley. Later, such demands would be made against the cities of Fontana and Ontario. Scott Rafferty, a lawyer based more than 300 miles from San Bernardino County in Walnut Creek, next joined the fray, making a demand against Victorville.
A provision of the California Voting Rights Act was that a city hit with a demand that it move to by-ward or by-district voting could seek a “safe harbor” from the ruinous storm of potential litigation and get out from under the accusation that as a community its members had engaged in racially polarized or ethnically polarized voting by simply agreeing to make the voting system transition to wards or districts and paying the attorney making such a challenge a fee of $30,000 to $45,000.
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, the prospect of having to wage a legal battle that, if won, would cost the city its own legal costs, and if lost, could run into the millions of dollars, persuaded city council after city council to simply fold and accept a transition to district voting without a fight.
Despite the assumption of many that ward voting systems are a more democratic alternative in the selection of political leaders and the relative advantage those seeking a transition to ward/district systems are given under the California Voting Rights Act notwithstanding, there is yet considerable debate over the issue of the relative merits of the competing ward vs. at-large voting systems, including whether ward and district systems actually facilitate a fairer representation of the minority population.
Front and center in the debate over voting rights is the contention of some voting rights advocates who maintain that ward-based systems can empower minority voters by making it more likely that a minority candidate in a ward that is more heavily laden with minority voters will be elected than if that minority candidate must stand for election in a contest in which all of the voters of the jurisdiction are participating, thus diluting the minority vote. Nevertheless, some political theorists point out that in certain cases, particularly those in which racial or ethnic heterogeneity is evenly spread throughout the community, an election system changeover from at-large elections to ward elections is more likely to result in fewer minorities being elected.
A substantial element of the population out and out rejects the accusation that polarized voting or racism is institutionalized into their communities. They point out that in a majority of the cities targeted for forced acceptance of ward/district voting systems, members of protected minority groups have achieved elected office.
Beyond the issue of extending representation to a single given element of the population, there are arguments presented against ward or district systems based upon the contention that political wards lend themselves to a corruption and bastardization of the political process. The imposition of ward systems, those of this mindset contend, carries with it the potential for creating a set of fiefdoms within a city wherein if not absolute, then near-absolute, power is installed in a single individual within each of those geographical divisions, rendering each such elected official a political boss in effect separately attended by a retinue of political henchmen fiercely loyal to that officeholder, who is able to dole out perks and favors at will and is empowered to act with utter ruthlessness and efficiency, unchecked by the majority of voters within the city as a whole who must live with the impacts of such depredations. Such historical and ongoing examples of this consist of the political realities in cities such as Chicago and Philadelphia, and indeed, closer to home, in the City of San Bernardino, where the voters in this year’s primary election made a rejection of that city’s now-lame duck political boss, Mayor John Valdivia, who established himself initially as the lord of the Third Ward in that city before moving up into the mayor’s position in 2018, from which perch he initially assembled a ruling coalition of ward-elected councilors, only to see that coalition fall apart when actions he took in his capacity as the city’s political boss were engulfed in scandal. Valdivia was rejected by the city’s voters in the June 7 primary election, finishing in third place, which precluded him from seeking reelection in next Tuesday’s general election.
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. In doing so, those municipalities paid the lawyers that pressed the issue the $30,000-to-$45,000 they were eligible to collect under the California Voters Rights Act and which those attorneys sought for forcing those cities and towns into accepting district/ward voting.
Perhaps the most egregious of the cases in which a city had organically elected protected minority members to its council while using an at-large elective process but was still forced to embrace ward system voting involved the City of Victorville, which in the thirty years between 1991 and 2021, had 20 council members, eight of whom – Felix Diaz, Rudy Cabriales, Angela Valles, Gloria Garcia, Eric Negrete, Blanca Gomez, Rita Ramirez and Elizabeth Becerra – were Latino or Latina and two of whom – Jim Busby and Leslie Irving – were African American. Earlier this year, Scott Rafferty, alleging that Victorville had been plagued with racially/ethnically-polarized voting, demanded that the city transition to district elections. Despite Victorville City Attorney Andre deBortnowsky’s insistence that the city had not engaged in racially/ethnically polarized voting, he nevertheless recommended that the city knuckle under and accede to moving to ward system voting as Rafferty was proposing, since even were the city to roll the dice and prevail in resisting the changeover, it would not be able to recoup the legal costs of engaging in that defense, given the terms of the California Voting Rights Act. Moreover, if Rafferty was able to prevail in convincing the court that the city should create voting districts and carry out its city council elections in that fashion, the city would be on the hook for hundreds of thousands of dollars in legal billings made by Rafferty. Thus, Victorville will hold its first by-ward election next week.
A basic criticism of the California Voting Rights Act is that it focuses on race as being a primary factor in the electoral process, which in itself is unconstitutional, and that granting certain minorities “protected” status under the act violates the Equal Protection Clause of the 14th Amendment, since whites are not included in the act’s provisions, even within those jurisdictions where they constitute a numerical minority.
Chino Hills represents what for many is an unexpected or unintended untoward consequence of the act growing out of a conflict between the protected minorities outlined in the act as eligible for special status and favored political treatment.
In this year’s race, Ray Marquez, a member of the city council since 2013, is being challenged by Eddie Wong, Jason Zhang and Wai-Min Liu.
Following the city’s 1991 incorporation, Marquez was a member of the Chino Hills Planning Commission from 1992 until 1994; he was a member of the Parks and Recreation Commission from 1994 to 2006; and he was an elected board member with the Chino Valley Independent Fire District from 2006 until he resigned that post upon being elected to the city council. As an elected Hispanic officeholder before the city was forced by outside elements into by-district elections, Marquez represents, along with other previously elected Latinos and Latinas such as former Councilwoman Rosanna Mitchell-Arrieta, an argument against the necessity of going to district elections to enfranchise minority voters. The situation is further complicated by the consideration that Chino Hills is the San Bernardino County community with the highest concentration of Asian/Asian American residents, with some 37 percent of its 85,801 residents so identified. By comparison, 43 percent of those living in the city are Caucasian. Within that 43 percent are those who also identify as Hispanic. That Latino subset is equal to 29 percent of the population overall. Another 3.81 percent are African American, 7.35 percent are two or more races, 0.67 percent are Native American 0.05 percent are Native Hawaiian or Pacific Islander and 7.79 were referred to as “other race” or undefined.
No Asians have been elected to the Chino Hills City Council, despite what has been historically a significant number of Asian voters within the city. Of note is that at present, within District 1, 52 percent of the residents are Asian/Asian American.
In this way, the application of the California Voting Rights Act to divide Chino Hills into voting districts has had the practical effect of placing the most successful protected minority politician in that city’s history into a district in which, statistically in terms of voter racial identification, he is at an electoral disadvantage. Put another way, the division of Chino Hills into districts has created a political enmity between a historically successful Latino officeholder and any likely Asian candidates, as in this year’s case, represented by Zhang, Wong and Liu.
Based on the state legislature’s stated goal in passing the California Voting Rights Acts of increasing minority representation in positions of federal, state and local governmental authority, constraining three ambitious Asian candidates into a race for office against an incumbent Latino would appear to run counter to the intent of the act. This paradox is extended when it is considered that the justification for the passage of the act was to “prevent the diluting of minority votes” and that in the extant case of the District 1 race in Chino Hills, three Asians are in the contest against a single incumbent Hispanic, which is creating a circumstance in which the Asian vote is being divided, greatly reducing the prospect that an Asian will get elected, at least in this election cycle.
Therefore, the District 1 race in Chino Hills, just as the Ward 2 race in San Bernardino in June, the current mayoral race in Fontana, the District 2 race in Barstow; the mayoral race in Adelanto; the District 1 council race in Rancho Cucamonga; and the Division 2 race in the West Valley Water District, constitutes a practical political conflict growing out of the California Voter Rights Act’s declared intent of promoting minority representation within the ranks of elected governmental decision-makers, as it is pitting against one another those communities’ protected minority candidates, such that they are competing against each other rather than against the white incumbents whose historical monopoly on power inspired the passage of the California Voting Rights Act.
Some cynical observers have remarked that the act advanced the interests of the opportunistic lawyers who have used its provisions to enrich themselves by inducing cities to adopt district voting systems that have had only marginal or questionable success in empowering minorities politically.
Marquez is a retired firefighter with 28 years’ experience on the Santa Fe Springs Fire Department. While serving on the Chino Valley Fire District Board, Marquez in 2013 outpolled Rossana Mitchell-Arrieta, Debra Hernandez and Jesse Singh in a specially-called race to replace Councilman Wilburn “Bill” Kruger following his resignation. In 2014, Marquez again outdistanced Mitchell-Arrieta and Hernandez, as well as Lou Alfonso in the November municipal election.
Wong is a real estate salesman, based in Chino Hills.
Zhang says he stands for radical truthfulness, radical transparency and radical integrity in his run for the city council.
Wai-Min Liu emigrated to the United States with his parents in 1963. He attended San Fernando State College, studying engineering and has since specialized both academically and professionally in optics and laser optics. He taught at Pasadena City College in the physics department from 1972 until 2020.
Now retired, Liu had two companies, one which specialized in laser optics and the other which handled property management.
According to Liu, “City governments must reflect the diversity of our residents in order to achieve true representation. My 1st District is 52 percent Asian American, but there are no members of the council with a similar background. Overall, the city council does not reflect the main diversity groups in the constituency. This has to change.”
Liu said, “I believe in democracy. I founded the Chinese American Association of Chino Hills to build positive relationships in our city.”
While Liu is grateful for the opportunity for achievement he found in the United States, he says that Asian Americans are not always treated with fairness and respect. He believes he may prove to be the candidate that breaks the race barrier in Chino Hills, and that he intends to be the first of a long line of Asian Americans who will achieve meaningful political status in the city.
Liu is no stranger to controversy and has been accused of desecrating local oak trees, which are an indigenous feature of the rolling hills landscape of southeast San Bernardino County and are depicted on the Chino Hills city logo.
In July 2020,  Liu and three of his neighbors who live near or within the 1500 block of Rancho Hills Drive in the vicinity of Sunset Park – Edilyn Ancheta Oriel, Uday Dinesh Parikh and Romeo Lagmay Oriel – were cited and then charged with misdemeanors for destroying nine coast live oak trees and doing extensive damage to 17 others along with 23 Toyon bushes between May 3 and May 9 on the Ridgeview Loop trail behind their homes. The fully destroyed oak trees, considered to be priceless by some, were said to value $18,630 in the report provided to the district attorney’s office by the city. The four were charged with violations of Penal Code 384a(2) – the illegal removal of plant material from public lands.
The case dragged on against the quartet for more than two years. In September, Liu entered a plea on the charge by which he was given, according to the court, a “disposition of diversion,” by which he is required to provide restitution, engage in a community service and education-based program, and remain on probation until 2023.
Criminal charges are still pending against Oriel, Parikh and Oriel.
-Mark Gutglueck