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State Protections Endure

By Donna Mallard | Jun. 2, 2015

Law Office Management

Jun. 2, 2015

State Protections Endure

California stands out for supporting minority voters.

As the 50th anniversary of the federal Voting Rights Act approaches in August, the long-term viability of its principles is in question.

The U.S. Supreme Court has gutted key provisions (see Shelby County v. Holder, 133 S. Ct. 2612 (2013)), though it did direct a lower court in March to reconsider whether the state of Alabama unconstitutionally packed African-American voters into legislative districts that they already controlled so as to dilute their influence in other parts of the state. (See Ala. Legislative Black Caucus v. Ala., 135 S. Ct. 1257 (2015).) And 21 states have enacted laws since 2010 making it more difficult to vote, according to the Brennan Center for Justice. In this uneven landscape, California's Voting Rights Act, passed in 2001, stands out. (Cal. Elections Code §§ 14025-14032.)

"We're very proud that California has taken the lead in providing election protections to groups like Asian Americans, Latinos, and African Americans," says civil rights attorney Robert Rubin, who has been called the godfather of the state's voting rights act.

California's law makes it easier to challenge at-large voting schemes, which can leave minority voices underrepresented if majority voters overwhelm them. Dozens of cities and other agencies have since shifted to district-based voting to avoid that problem.

The city of Santa Barbara is a recent example. About 38 percent of its residents are Latino, but only one Latino has been elected to the six-member city council in the past ten years. Plaintiffs in Banales v. City of Santa Barbara (No. 1468167 (Santa Barbara Super. Ct. filed July 29, 2014)) say Latinos' votes are "diluted" because council members are chosen citywide, rather than through district-level elections.

"Latinos have been squeezed out," says A. Barry Cappello, a former Santa Barbara city attorney who represented the plaintiffs.

Under a settlement reached in March, Santa Barbara will be carved into six city council districts, and two will have majorities of Latino voters. The city paid $677,588 in attorneys fees and costs-including fees for the plaintiffs' attorneys to review the new district maps.

At first glance, district elections may seem like the arrangement that voting rights activists challenged in the Alabama case. The difference is that the Alabama plaintiffs allege that majority-minority districts there were drawn to contain the influence of a historically underrepresented minority group. In contrast, California's law spurs the creation of new districts when it could boost minority voters' influence. Dissenting in the most recent Alabama ruling, Justice Clarence Thomas wrote that race should play no role in determining district boundaries for any reason: "This is nothing more than a fight over the 'best' racial quota."

California's voting rights act also has its critics. John E. McDermott, who defended Modesto against an early state voting-rights lawsuit and now sits on the federal bench, wrote in 2008 that the law represented a "retreat from 14th Amendment limitations" on race-based electoral schemes. Critics also have said that the act's attorneys-fees provisions and relaxed evidentiary standards allow lawyers to force cities and other local governments to switch to district voting. In Santa Barbara, for instance, officials had hoped to put their new district system on the ballot for approval, but the plaintiffs would not agree to that.

"The standard of proof [of racially polarized voting in California] is so much lower that these cases are inherently difficult to defend," says Santa Barbara City Attorney Ariel Calonne. "Unfortunately, the nature of the case prevented us from ever asking the voters what they wanted to do."

Proponents of the law would like to see it expanded to ease challenges to district boundaries, not just at-large voting arrangements. But in October, Gov. Jerry Brown vetoed a bill that would have done just that. Rubin and others are working with legislators on a new version they hope Brown will sign.


Arguments Pending in Felons' Case

California's secretary of state, Alex Padilla, sponsored legislation when he was a state senator that would have expanded voting protections but now finds himself defending the state's refusal to let an estimated 45,000 felons vote.

The plaintiffs are former state prison inmates who were sent to county supervision under California's realignment law. The state Constitution prevents felons who are in prison or on parole from voting (Cal. Const., art. II, § 4; see also Cal. Elections Code § 2101). But a superior court judge ruled in 2014 that inmates who were moved to county supervision don't fit that description and should be allowed to vote. The secretary of state appealed, arguing that it never intended to "re-enfranchise" felons when it moved them to finish their sentences at county-run facilities or through county-run programs.

Michael T. Risher, a senior staff attorney with the ACLU of Northern California, says people under either mandatory supervision or post-release community supervision should be allowed to vote if their status is due to realignment.

"They are not on parole for a felony conviction," he says. "They have the right to vote."

The case, Scott v. Bowen (pending as No. A142139), is in the First District Court of Appeal. The parties are waiting for the court to set a date for oral argument. Padilla's office said it "does not comment regarding ongoing litigation."


Donna Mallard

Daily Journal Staff Writer

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