It now appears certain that the effort by a Northern California attorney last year to strong-arm Victorville into conducting by-district elections to ensure minority voter representation on the city council backfired, with Robert Harriman achieving electoral victory over Lizet Angulo in District 4 as a result of the first by-district election in city’s 60-year history.
The manner in which the election was held this year appears to have allowed white males – who are not considered to be a protected minority under the California Voting Rights Act, which was used to force the changeover to by-district elections – to make an inroad on a previous electoral situation in which they had been entirely shut out. Indeed, the at-large voting system that Victorville had used in every election from its 1962 inception up until this year had two years ago produced a city council that was entirely composed of women and had seated a single white member complemented by three Latinas and a Black woman. As at least a partial consequence of the attorney’s tinkering with the electoral process in Victorville, the city will have upon the swearing in of its newest member in December two white council representatives as opposed to just one and women will have lost their monopoly on the decision-making panel.
The standings in the District 4 race at present have reversed since the initial reporting of results on election night. Angulo was ahead by what seemed, if not a comfortable margin, a large enough lead that her election seemed likely. Ten days after the election, that has now changed. While the exact cause of the outcome in the November 8 balloting in District 4 cannot be precisely accounted for, the ground rules by which the only voters eligible to vote for Angulo were the ones living in an area best described as encompassing the areas surrounding the Victor Valley Mall. District 4 at its north end straddles the I-15 Freeway and southern end lies west of the I-15 Freeway, across from the western Hesperia City Limits. It is generally east of District 2 at its north end and north of District 2, which extends east below it at its south end. It is both west of District 1 at its north end and south of District 1, which extends west above its northern limits. It is east of District 5 on its northwest side, and it touches District 3 at its northernmost tip on its central east side. Also, at its north end it is immediately adjacent to the unincorporated doughnut hole at what might be described as the city’s midsection. It is the only district in the city that is contiguous to all four of the city’s other districts.
Victorville has a total population of 131,417, of which 72,922 or 55.49 percent are identified as Latino. The Black population in Victorville is pegged at 22,282 or 16.96 percent. Asians account for 5,178 or 3.94 percent. Angulo was shoehorned into District 4, which boasts a Hispanic population of 15,412 or 57.4 percent of the district’s total 26,871 population. District 4 further has a Black population of 3,372 or 12.5 percent and an Asian population of 964 or 3.6 percent. The configuration of the district fated Angulo into a match-up against Harriman, a contest that was the outcome of meddling in city politics by Scott Rafferty, an attorney practicing law in Walnut Creek, some 401 miles away.
Rafferty is among a crop of California lawyers who have made a substantial amount of money by exploiting provisions of the California Voting Rights Act.
The California Voting Rights Act of 2001 was framed with the intent of preventing the political disenfranchisement of minorities in the Golden State. It 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 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 officeholders 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.
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.
Those lawyers seeking a quick $30,000 to $45,000 payday or a larger payout by actually filing suit against cities to force them into district-based elections avoided some San Bernardino County cities, particularly those which had a clearly demonstrable history of electing minority – generally, Hispanic – civic leaders. Among those were San Bernardino and Colton, which had long histories of electing Latino and Black council members and had already switched to district voting, as well as Rialto, Needles, Grand Terrace, Montclair and Victorville, where their city councils had proven to be highly diverse.
Victorville had organically elected protected minority members to its council while using an at-large elective process for more than a generation. In the thirty years between 1991 and 2021, Victorville’s voters had elected a total of 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.
Despite that, in 2021, 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, in the face of Rafferty’s effort to force the city to embrace ward system 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.
Rafferty, intimating that he would tolerate no delays in the city moving to a ward/district voting system, successfully stampeded the city into making the change. City officials, wary that Rafferty might prevail in convincing the court that the city should create voting districts and carry out its city council elections in that fashion and thereby put Victorville’s taxpayers on the hook for hundreds of thousands of dollars in Rafferty’s legal billings, last year made it so that Victorville last week held its first by-ward election.
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.
Rafferty adhered to this theory in his action in Victorville, where he claimed he was making the demand that the city go to district-based voting to empower minority voters. Rafferty’s assertion was that by electing its council at-large Victorville was diluting the votes of its Latino citizens and suppressing the ability of its neighborhoods with concentrations of minority voters to recruit and sponsor the candidacies of minority council hopefuls and prevent them from aggregating their votes to elect minority candidates in districts represented by a single member. He maintained that having residents vote for a single candidate living within and representing a specific neighborhood or district would result in what he called “more representative” candidates for local office in Victorville with its substantial Hispanic population in future elections.
Rafferty’s assumption was that historically minority, or more specifically protected minority, candidates had been shut out of Victorville’s political process and had not taken their rightful place on the dais at Victorville City Hall. That assumption was demonstrably at a variance with the facts. He nevertheless proceeded with threatening litigation against Victorville, and succeeded on the basis of the city not wishing to risk the financial liability that cities must face in functioning under the uneven advantages given plaintiffs under the California Voting Rights Act.
In many of the cities in Northern California where Rafferty has plied his trade and used the California Voting Rights Act to force the adoption of by-district elections, he had been criticized for claiming, without marshaling any proof or probative evidence, that in cities where there has been a dearth of minority officeholders, voters, and in particular white voters, have pointedly voted against minority candidates because those candidates were not white. Residents in those communities have disputed Rafferty’s characterization of their cities or towns as racist based on officeholders there having not been members of protected minorities. They contend that Rafferty has defined “equal rights” as providing one group preference over another. They have said that Rafferty has falsely claimed that their communities have collectively sought to ensure that only white males were elected, and he has used that as a justification for drafting electoral maps in cities that are designed to perpetuate reverse racism by promoting a system designed to ensure that candidates of a specific ethnicity are given an electoral advantage.
Rafferty has been further criticized by those observing his work who say he does not adequately familiarize himself with the communities into which he invites himself, and that he often makes assertions of fact that are simply not born out by the history or data relating to voting patterns in those communities.
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 – either a council person or alder person – a political boss in effect separately attended by a retinue of 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 led to San Bernardino’s voters last week electing a new mayor, Helen Tran.
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.
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.
This week’s tallying of the November 8 vote in Victorville’s District 4 showing Harriman outgunning Angulo represented a resounding disavowal of both the principle and theory upon which Rafferty and other attorneys making use of the California Voting Rights Act – Shenkman, Parris, Grimes and Barragan among them – operate.
Prior to the Rafferty-induced change in Victorville’s voting system, the last five people elected in Victorville were women, three of whom were Latinas and one of whom was African American. With the change that Rafferty wrought, two white candidates were elected/reelected, one of whom is male.
Going into the election, Angulo tracked well as a candidate. An active Democrat, she is the president of Ladies Taking Key Opportunities, a nonprofit that distributes clothing to the less fortunate, including women veterans who are under economic duress, memory loss centers, women’s shelters, and the homeless. She is anything but a political neophyte, having been elected to the Bassett Unified School District Board of Trustees in Los Angeles County, where she served from 1997 to 2001.
She ran and came up short in her bid for a Victorville Council seat in 2018, finishing fifth among a field of 11 candidates competing for two positions, and in 2020 ran more strongly when she again competed for a position on the council, coming in seventh in a field of 22 candidates for three open council slots.
Harriman was no slouch either, as he is a 42-year resident of Victorville, a member of the Victorville Planning Commission and Community Services Advisory. A local businessman who owns and operates High Desert Concrete, his perhaps strongest suit is his many years of involvement in youth sports in Victorville, including serving as the president of Victorville Little League.
In essence, Angulo and Harriman were competing for an open position on the council that had been vacant since Rita Ramirez-Dean was removed last year from the at-large council post she was elected to in 2018 because three of her colleagues maintained she was not residing in Victorville following her hospitalization for the amputation of her lower leg. With the first report of results at 8:30 p.m. on election night ,Tuesday evening, November 8, with only mail ballots having been received at that point, Angulo jumped off to what appeared to be a decided lead, 845 to 731. At 2 a.m. the morning November 9, Angulo widened her lead when three votes for her came in from the polls and two registered for Harriman. At 4 a.m., 92 voters from the polls came in for Angulo, which were more than matched by 142 that were notched by Harriman. At 6 a.m., Angulo claimed another 17 votes and Harriman brought in 13. 1,045 votes to 930. At 4 p.m., Harriman made a huge leap forward, logging 127 more votes while Angulo received 70. The vote count at that point stood at 1,057 or 50.36 percent for Angulo and 1,036 for Harriman. Over the next two days, Harriman made incremental inroads on Angulo’s lead, such that as of November 11 at 4 p.m., Angulo held a six-vote lead, 1,223 votes or 50 percent to 1,217 votes or 49.75 percent. There were six unresolved write-in votes in the race. The following day, November 12, at 2 p.m., Angulo had registered another 21 votes for 1,244 voter endorsements, which was good for 50.04 percent. In the same timeframe, Harriman garnered another 25 votes for 1,242 votes or 49.96 percent, as the issues with the write-in votes had been resolved.
On Monday, November 14 at 4 p.m., the tallying of the next batch of incoming votes showed that while 112 further votes had been notched in Angulo’s favor, 127 came in for Harriman. Thus, Harriman had pulled into the lead by 13 votes, with 1,369 votes or 50.24 percent to Angulo’s 49.76% or 1,356.
The Sentinel by phone caught up with Rafferty late this afternoon, asking whether he now believed his efforts to promote minority political representation in Victorville was misplaced, given that before he had begun his efforts, the city council was composed entirely of women and four-fifths composed of protected minorities. Rafferty rejected any such suggestion.
“The voters in that neighborhood [i.e., Victorville District 4] were not well represented,” he insisted. “The at-large voting didn’t reflect the city’s population.”
When it was pointed out that the one change effectuated in this year’s election was to elect a white man to the council where four-fifths racial/ethnic minority members had heretofore predominated and the council was entirely on the distaff side, Rafferty resisted the implication that the results of the Angulo/Harriman contest tended toward disproving his theory that a by-district system rather than the historic at-large method of polling will better promote the election of protected minority candidates.
“It’s a longtime reform,” he said. “It’s not about the success of any given candidate. It’s about the voters. It is not a strategy intended to benefit any individual candidate.”
As to this particular election in District 4 putting a white man into office where previously women had been exclusively chosen by the voters with 80 percent of those being minorities, Rafferty said, “It doesn’t benefit just minorities. It was designed to benefit any underrepresented voters.”
Rafferty indicated he had targeted Victorville in large measure because of the vote of the council last year to remove Ramirez-Dean from office, which he said deprived the council thereafter of the participation of one of its Hispanic members. He characterized that action, which was opposed by Ramirez-Dean along with her council colleague Blanca Gomez and was supported by Councilwoman Leslie Irving, an African American, Councilwoman Liz Becerra, a Latina, and Debra Jones, a Caucasian, as racist.
-Mark Gutglueck