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Verdict on the California Voting Rights Act: The Jury is Still Out

Don’t say the 2002 California Voting Rights Act (CVRA) hasn’t had results. It’s just that results aren’t necessarily those civil rights activists are looking for.

One clear winner is the Lawyers Committee for Civil Rights (LCCR), which has collected over $4 million in legal fees from settlements under the law, according to a 2009 AP report. That money comes out of school district, city and county budgets – adding up to less investment in education, infrastructure and services.

“We are acutely aware of the importance of ensuring that our limited resources are devoted to the education of children,” Madera schools superintendent John Stafford wrote in a 2009 letter to the Fresno Bee about the 2008 CVRA lawsuit Rey v. Madera Unified School District, “not taking them out of the classroom to pay for litigation.”

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Stanislaus County’s $1.75 million in legal fees stemming from CVRA come from the county’s infrastructure fund, according to the December 6, 2009 Modesto Bee. That’s the same fund that the LCCR charged wasn’t spending enough on infrastructure improvements in unincorporated Latino neighborhoods.*

But when it comes to measuring actual representational diversity – even by the exceedingly narrow standard used by the LCCR, namely the number of superficially identifiable Latinos elected to public office – the bottom line is far less clear.

Consider what happened in Modesto, which replaced at-large City Council seats with district seats, and created a majority-Latino district (Modesto District 2). In 2010 by a sold majority, that district elected a white Republican with deep neighborhood roots, Dave Geer, over a Latino Democrat, Al Nava.

Then there’s the apparent CVRA backfire in the Ceres Unified School District, which serves a student population that is 48 percent Latino. Ceres preemptively changed its at-large school board seats to district seats to avoid litigation.

Before changing, three of the seven school board members were Latino, reported the Dec. 6, 2009 Modesto Bee. After the new districts were put in place, Latino representation on the board dropped to two.

But there’s also evidence that district seats are successful in increasing diversity.

Following the LCCR’s lawsuit, the Madera Unified School District changed to district seats in 2008. Despite the fact that its student body was 80 percent Latino, there was only one Latino on the district’s board. After the 2010 election, four of the board’s seven members were Latino.

Another place where replacing at-large seats with geographic election districts had a measurable impact on representation is Watsonville. In 1989, the Pajaro Valley town changed its system following a lawsuit under the 1965 federal voting rights act – the same law that the plaintiff’s lawyer (and CVRA author) Joaquin Avila claimed in 2001 didn’t serve Latinos.

The landmark case went all the way to the U.S. Supreme Court and set precedent for district elections as a remedy for demonstrably discriminatory at-large elections. At the time, Latinos comprised more than half of Watsonville’s population, but no Latino had ever been elected to the City Council.

District elections increased voter turnout, which led to the election of one Latino council member in 1989 and a Latino mayor in 1991, according to a 1999 UC San Diego study, “Remedying Racial and Ethnic Inequality in California Politics: Watsonville Before and After District Elections,” by Paule Cruz Takash.

Watsonville exemplified the explicit racism and polarized voting that the federal voting rights act aimed to combat. There was ample evidence of “remediable racial injury” in Watsonville’s history – for example, the Watsonville Elks Club was explicitly “whites only” into the 1970s.

One persuasive argument that Watsonville’s at-large elections were discriminatory was a study showing a widespread double standard for measuring Latino and white candidates. Latino candidates were expected to have served on city commissions, while white candidates didn’t face the same requirement for commission experience.

So why does California need its own voting rights law? California’s law explicitly eliminates the requirement to prove intentional discrimination – and this makes it easier to win lawsuits.

Critics say that’s unconstitutional: “a retreat from 14th Amendment limitations designed to ensure that liability is imposed only where there is a remediable racial injury rather than directed to racial balancing, proportional representation objectives,” is how Attorney John McDermott, Modesto’s defense attorney in Sanchez v. Modesto, put it in a paper presented to the February 2008 Continuing Education conference of the League of California Cities. Making it easier to win cases, McDermott said, “is not a compelling interest.”

McDermott in no novice about voting rights legislation. He represented disability rights groups in a 2004 federal charging that lack of accessible voting equipment violated the rights of disabled voters. The federal district court decided against McDermott’s client.

*These unincorporated pockets, with their substandard infrastructure, developed in the 1930s and 1940s to house Dust Bowl migrants – suggesting economic and class, rather than ethnic, discrimination.

Carolyn Schuk can be reached at cschuk@earthlink.net.

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