Activist vows to appeal dismissal of Voting Rights Act challenge

A federal judge dismissed a constitutional challenge to the California Voting Rights Act, designed to empower minority groups in local elections by requiring cities to switch from at-large to district voting in local elections.

However, conservative litigation strategist Edward Blum, who won a U.S. Supreme Court ruling striking down key sections of the federal voting rights law, said he and his organization, Project for Fair representation, would appeal the decision to the 9th U.S. Circuit Court of Appeals.

"While we are disappointed with the district court ruling, we look forward to making our appeals in the 9th Circuit and beyond if necessary," Blum said Wednesday. Higginson v. Becerra, 17-CV2032 (S.D. filed Oct. 4, 2017).

The California Voting Rights Act of 2001, designed to prevent voter dilution among minority populated districts, sparked severals lawsuits against cities using at-large voting systems in local elections.

The leader of this voting-rights litigation effort, Malibu civil rights attorney Kevin Shenkman of Shenkman & Hughes LLP, has sent letters threatening litigation if cities do not adopt district voting. Most cities who receive letters adopt district voting to avoid litigation, but a few have gone to court.

Santa Monica waged a costly six-week bench trial that it lost. Los Angeles County Superior Court Judge Yvette Palazuelos ruled the city violated the voting rights act and ordered it to switch to district voting.

In 2017, Blum's group filed a complaint on behalf of Don Higgins, the former mayor of the San Diego County community of Poway, which after receiving a threatening letter from Shenkman, switched to district voting.

Higginson, represented by Washington, D.C.-based Bryan K. Weir of Consovoy McCarthy Park PLLC, argued the newly drawn districts harmed him and were a form of racial gerrymandering.

U.S. District Judge William Q. Hayes of San Diego said in his order Monday Higginson failed to present evidence Poway or state lawmakers had drawn new districts on the basis of race. Higginson failed to "state a racial gerrymandering claim subject to strict scrutiny analysis under the Equal Protection Clause," the judge ruled.

Asked for comment, the state attorney general's office said in an email it "will let the ... order, granting the motion to dismiss, speak for itself."

U.S. District Judge William Hayes

Blum is not a lawyer but is known for being an outspoken civil rights activist who funds litigation against laws involving race and ethnicity. He argued that while district voting might be legally required in rare instances, it results in further racialization of politics.

"They have had the effect of forcing whites into their corners of communities, African-Americans into their corners, and Hispanics into theirs, thus reinforcing what divides us as citizens of towns and cities," Blum wrote in an email Wednesday.

If Blum makes good on his promise to appeal, it would be the second time he and his group has done so. Supported by Blum, Higginson previously appealed Hayes' decision to dismiss the case for lack of standing. The 9th Circuit reversed and remanded the case. But according to Justin Levitt, a constitutional law scholar and professor at Loyola Law School who testified as an expert witness in the Santa Monica voting rights case, it did not offer much in the way of an explanation.

"I thought the trial court was right the first time. The 9th Circuit reversed but didn't make clear why," he said.

Levitt argued Blum's assertion that the California Voting Rights Act divides cities by race is unfounded because according to him before plaintiffs could sue a city under the act they must prove a minority group's vote was actually diluted.

"Plaintiffs have to prove that the minority in town has different voting preferences than the majority and that the minority as result is losing elections." Levitt said. "It's usually just the non-minority that happens to be winning rather than everybody agreeing who should be elected."