The Ballot Bulletin: March 2019
From Ballotpedia
Welcome to The Ballot Bulletin: We track developments in election policy at the federal, state, and local levels. Each issue includes an in-depth feature—such as an interview or legislative analysis—and discussions of recent events relating to electoral and primary systems, redistricting, and voting provisions. In this month’s edition, we take a closer look at a recent challenge to the California Voting Rights Act.
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Federal judge upholds California Voting Rights Act
On February 4, 2019, Judge William Hayes, of the United States District Court for the Southern District of California, dismissed a challenge to the California Voting Rights Act (CVRA). The CVRA requires municipalities to conduct district-based elections if minority groups can demonstrate that existing at-large electoral schemes disenfranchise those groups.
- Who are the parties to the suit? Don Higginson, a registered voter and former mayor of Poway, California, filed the suit against California Attorney General Xavier Becerra (D) and the City of Poway in 2017. Higginson is represented by the Project on Fair Representation. The case name is Higginson v. Becerra.
- What is at issue? On August 13, 2017, the Poway City Council voted 5 to 0 to divide the city into four electoral districts for electing members to its city council; previously, the city had conducted such elections on an at-large basis. The council's action was precipitated by a letter submitted to the city on June 7, 2017, by attorney Kevin Shenkman, who claimed that "Poway's at-large system dilutes the ability of Latinos ... to elect candidates of their choice or otherwise influence the outcome of Poway's council elections," in alleged violation of the CVRA. On October 3, 2017, the council adopted the ordinance establishing an electoral district map, known as Map 133. Poway's 2018 municipal elections were conducted using Map 133. Higginson filed suit on October 4, 2017. In the complaint, Higginson's attorneys argued the following: "Under the CVRA, local governments must abandon at-large voting systems if racially polarized voting exists–regardless of whether the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district. Accordingly, the CVRA flagrantly violates the Fourteenth Amendment. Its 'race-based sort of voters' does not serve a 'compelling interest' nor is it 'narrowly tailored.'"
- How did the court rule? Hayes, nominated to the court in 2003 by Pres. George W. Bush (R), first ruled on the case on February 23, 2018, finding that Higginson lacked standing to bring the complaint. The United States Court of Appeals for the Ninth Circuit reversed this decision on June 14, 2018, and remanded the case to Hayes for further consideration, prompting his February 4, 2019, order. In that order, Hayes wrote the following: "The Court finds that Higginson's allegations, accepted as true, with reasonable inferences drawn in his favor, do not state a racial gerrymandering claim subject to strict scrutiny analysis under the Equal Protection Clause. … Higginson fails to state a claim under the Equal Protection Clause of the Fourteenth Amendment, and the Complaint must be dismissed."
- What are the responses?
- Edward Blum, president of nonprofit Project on Fair Representation, said, "We are disappointed with the ruling. We have every intention of seeking an appeal [in] the Ninth Circuit, and beyond if necessary."
- Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which filed an amicus brief in support of the CVRA, said that the ruling "appropriately distinguished California's attempt to remedy and prevent racial discrimination in voting from discrimination itself."
- More about the California Voting Rights Act: Enacted in 2002, the California Voting Rights Act (CVRA) prohibits California municipalities from using at-large electoral methods that "impair the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election." Under the law, a protected class is defined as any bloc of voters who are members of a race, color, or language minority group. A 2006 amendment to the law requires CVRA plaintiffs to notify political subdivisions before filing suit, giving subdivisions 45 days to announce their intention to transition to district-based electoral schemes, thereby avoiding a lawsuit.
- Impact: According to the League of California Cities, at least 88 cities transitioned to district-based electoral systems under the CVRA between the time of its enactment in 2002 and May 2018. Prior to the enactment of the CVRA, 28 cities in California conducted municipal elections on the basis of districts.
- Previous legal challenges: In 2005, a Stanislaus County judge overturned the law, but that decision was reversed the next year by the California Fifth District Court of Appeals, which found that the CVRA did not violate the voting rights of any individual or racial group. The plaintiffs appealed this decision to the Supreme Court of the United States, which turned down the appeal on October 15, 2007.
Other election policy news
- Redistricting in New Hampshire: On February 28, 2019, the New Hampshire House of Representatives voted 218 to 123 in favor of HB706, which would, if enacted, establish an independent commission tasked with congressional and state legislative redistricting. A total of 202 Democrats and 16 Republicans voted in favor of the bill; 123 Republicans voted against it. The commission would consist of 15 members, with nine of them selected from a pool of 45 applicants by the secretary of state. Of these nine, three would belong to the state's largest political party, three to the second-largest party, and three to neither of the largest parties. These nine members would then appoint the remaining six, two of whom would belong to the state's largest party, two to the second-largest, and two to neither of the largest parties. The New Hampshire State Senate is considering its own independent redistricting commission proposal, SB8.
- Judicial selection in Delaware: On February 5, 2019, the United States Court of Appeals for the Third Circuit issued its ruling in Adams v. Governor of Delaware, striking down a state constitutional provision requiring that appointed state-level judges be affiliated with a major political party. The plaintiff, judicial appointment applicant James Adams, argued that this provision violated his associational rights under the First Amendment. The defendant, Governor John Carney (D), argued that because judges are policymakers he had the right to take partisan affiliation into account as part of the appointment process. The Third Circuit rejected this argument, finding instead that judges do not qualify as policymakers because "whatever decisions judges make in any given case relates to the case under review and not to partisan political interests." The court concluded that Adams' associational rights had therefore been violated.
Legislation update: Redistricting, electoral systems, and primary systems bills
The maps below identify states in which redistricting, electoral systems, and primary systems bills are being considered in 2019. A darker shade of red indicates a greater number of relevant bills.
See also
- Election policy on Ballotpedia
- Electoral systems legislation at the state and city levels in the United States, 2019
- Primary systems legislation at the state and city levels in the United States, 2019
- Redistricting legislation at the state and city levels in the United States, 2019
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