|PEREZ ET. AL. V. CITY OF SAN DIEGO
This 2 and a half year voting rights lawsuit coordinated by the Chicano Federation alleged that the City's electoral system diluted minority voting strength. In January, Attorney Michael Aguirre, who represented the Chicano Federation during the lawsuit, discussed its history and impact before the Commission.
At this meeting, Assistant City Attorney Leslie Girard presented background to the Commission on the Perez v. City of San Diego lawsuit.
LES GIRARD: Thank you, Honorable Chairman and members of the Commission. My name is Leslie Girard. I'm an Assistant City Attorney for the City of San Diego. I must confess that Mike Aguirre has me at a disadvantage. I did not handle the case for the City of San Diego some ten years ago. Those individuals that did have long since left the City Attorney's Office. But I did have familiarity with the matter as it went through the process and I did talk to the individuals that handled it as the matter was progressing, and I was privy to the discussions that led to the two settlement agreements that ended the case.
I have had the opportunity to read the transcript from Mr. Aguirre's presentation to you and I don't...I'm not sure that I would entirely agree with how Mr. Aguirre characterizes the status of the settlement agreement in today's context. But I don't know that that necessarily matters for your purposes.
If you go back and look at the matter, what happened was we had the lawsuit claiming that there was a violation of the Voting Rights Act, and the original settlement agreement required, basically, the City to redistrict by a time-certain in compliance with federal and state law basically in conformance with the Voting Rights Act. What happened after that, basically, was a competing set of maps. And Mike referred to "The Gang of Five" versus the "Gang of Four," and that's basically what happened. There was...there were five individuals on the City Council that supported a map and there were four that did not support the map, and the map that was supported by the five--the plaintiffs in the case did not believe complied with federal and state law. Unfortunately for the situation, the map supported by the five was adopted. That resulted in the litigation basically being restarted and resulted in the second settlement agreement, by which the City Council agreed to rescind the ordinance that had adopted the map supported by the so-called "Gang of Five" and resulted in the map that now exists.
In pertinent part, the settlement agreement...the second settlement agreement, as Mr. Aguirre pointed out to you, contains the following language:
"United States District Court for the Southern District of California wherein this action is currently pending shall continue to supervise the terms of the settlement agreement including this modification with the full power of a Court order under section 5 of the Voting Rights Act." And then it goes on to say that "the plaintiffs further agree that there shall be certain notices."
Now, I have re-familiarized myself with both Section 2 and Section 5 of the Voting Rights Act, and the two sections do two different things. Section 2 was the basis of the original litigation against the Cit, and Section 2 is the basic prohibition on discriminatory practices in voting. And Section 5 does something a little bit different. Section 5 says that if certain jurisdictions--and there's a specific list of jurisdictions that have been identified by the Attorney General as being subject to Section 5, and as Mr. Aguirre pointed out to you, those are basically southern jurisdictions, states, and cities that have a history of discriminatory voting practices--if those jurisdictions wanted to change their practices, procedures, etc., they were required to get pre-clearance from the Attorney General of the United States or go to court and get a declaration from a court that the change they were making was okay. But what either the Attorney General or the court would look at was not the Section 2 criteria, but rather would the change result in what's called "a retrogression" in the rights that had been established.
If you'll look at the case law that has developed, in particular over the course of the last ten years, in essence, after this settlement agreement was agreed to, the Supreme Court of the United States has said that the two things...the two sections do two different things. Section 2 creates an affirmative duty to correct a problem. Section 5 says you can't change something until you get clearance. In other words it protects the status-quo until a court or the Attorney General gives its blessing. And the reason for that was because some of the jurisdictions that were subject to Section 5 would try to stay a step ahead of the courts and of the Department of Justice by changing their boundaries, or changing their voting practices to further embody the discriminatory practices, but stay a step ahead of the lawsuits. And so, what Section 5 does is say, no, you can't do that. If you're on this list, you can't make any changes until somebody says that it's okay to do so. But they do two different things.
The way...I think the status today, and I think the intent of the settlement agreement was basically to say, this settlement agreement has the force and effect of a court order following a trial. And that the District Court, over here in the Southern District, has the ability to enforce the terms of the settlement agreement. And what that basically meant is the City tried to redistrict five years ago and changed the boundaries. Or if we tried to implement some other discriminatory voting practices, the plaintiffs could run down to the District Court and say, "whoa, District Court, they're messing with the agreement and it violates both Section 2 and Section 5. You have the power to stop them. Please stop them."
I don't think the status today, when you are going into a new scheduled redistricting, requires that you either get pre-clearance of the Attorney General or of the District Court. Now, having said that, Lisa Foster is a very, very good attorney in our office and she will continue to advise you on this matter as we go through. And we've just started to take a look at it. And I know, based on the transcript that I read, that Mr. Aguirre thinks that you probably need to go down and get pre-clearance either from the District Court or from the Attorney General.
There is nothing that would prevent you from doing so voluntarily if you wanted to. If you wanted to submit the plan to the Attorney General to get pre-clearance, if you wanted to go down to the District Court and say, "You appear to have continuing jurisdiction. Would you look at this?"--there's nothing that would prevent you from doing that voluntarily. In addition, what the settlement agreement does provide is that the plaintiffs in the case will get specific notice of your proceedings and of the ultimate decision process at the City Council. So, they will have an opportunity to be heard. And I'm sure their voices will be heard. And you can continue to assess the need to get pre-clearance either from the DOJ or from the District Court, or not, depending on the feedback and the testimony that you get and that the City Council may get as they go through the process.
But, I'm not sure, as I sit here today that the intent of the settlement agreement was to require the City to go get pre-clearance either from the DOJ or from the District Court for the purpose of implementing a regularly scheduled redistricting. There appears to be something of a time limit in the second settlement agreement that basically says that you will or you won't do certain things by November 15th ...for redistrictings that would occur in the next ten years. Now, the affective date of the settlement agreement was in 1990. So, ten years would have passed in 2000. And we haven't...the City has not undertaken redistricting or implemented any type of voting practice that would be subject to either Section 2 or Section 5 in that time period.
So, again as I sit here today, independently, I don't believe that the settlement agreement requires that the City do anything affirmatively with regard to Section 5 pre-clearance. But we will continue to look at the matter. The last thing we want to do is create an artificial dispute with the plaintiffs and Mr. Aguirre about that and just further, kind of murky the waters with regard to your very important job.
That's about all the comments I have with regard to the settlement agreement. I'd be happy to answer any questions you have about what Section 2 requires and what Section 5 might require you to take into consideration.
COMMISSIONER CAMARILLO: Good afternoon. Mr. Girard, question. What would be the harm of this body, once it draws one or more maps, to recommend to the panel of retired judges in terms of due diligence, and abundance of precaution, of seeking the feedback from the federal court?
MR. GIRARD: I don't think there would be any harm to that. And I didn't mean to suggest that. As I said, I think it might be entirely appropriate on a voluntary basis to seek pre-clearance. I would suggest, however, that the District Court, being who they are, might decline to do so on a voluntary basis. They might conclude that they don't have a duty to do so. And you might be better, if you wanted to get feedback and pre-clearance, to go to the DOJ first and go that route. But there would be nothing to prevent you from recommending that we seek pre-clearance either from the DOJ or from the District Court. But recognize the District Court might decline because they might feel that they don't have an obligation to do so.
COMMISSIONER ULLOA: I want to thank you for coming in and speaking to us. I do want to ask, in terms of getting any kind of clearance from the Attorney General's Office, how long would the turnaround time be from the time we submit it...to the time we get their response? And also, at what point...would we submit that--after the City Council has looked at it or only until after we've looked at it?
MR. GIRARD: I don't know the answer to any of those questions with any certainty. I would suspect that the turnaround time might be moderate depending on the amount of information. A couple of months depending on the amount of information that you're able to supply to them. For example, if you have all the statistical data that would support the drawing of the boundaries and would allow them to make the determination that there is no retrogression under Section 5 in terms of the status and comparison to the existing map. They might be able to turn it around fairly quickly. Especially if they're made aware of deadlines that California law imposes upon the adoption of the redistricting, and the Charter. So, I would hope that the turnaround time would be fairly quick.
In terms of when somebody would submit it, I believe based upon my reading of the statute that it would have to be at the point where a final decision is made that this is the map that we are going to adopt or intend to adopt. Because then you would have some certainty with regard to the statistical data and the boundaries that they would be looking at.
CHAIRMAN PESQUEIRA: We are required to have a preliminary map first. Now, the preliminary map will go to...as I see, goes out and we have to go to public discussion on that. Would the preliminary map be the correct map to turn in at that time? Or would we have to wait until the final map?
MR. GIRARD: As I read the statute, it would be a final map that would be subject to review and pre-clearance. However, we can always ask the Department of Justice what their views are on the procedure. And if they're willing to review a preliminary map before it goes out, we could get that answer for you.
COMMISSIONER CAMARILLO: I wanted just a portion of (Commission Ulloa's) question, either to Mr. Girard or Ms. Foster. I did not understand that our charge includes getting directions from the City Council. And I understood that was a question. And I don't think that that's a step in our marching orders. They're not involved.
CHAIRMAN PESQUEIRA: They're not involved. We just present it.
COMMISSIONER ULLOA: My question was, do we have to wait until the City Council approves the map that we approve before it goes to the Attorney General's Office. And I think the answer is that...well, I don't know...I guess I...
CHAIRMAN PESQUEIRA: Let me ask Lisa to...
MS. FOSTER: I think (Commissioner Camarillo's) right, and I'm glad you brought that up. Our regulations for how we're to conduct this redistricting do not require Council approval of the map. It's the Commission's decision after sending the preliminary map out for the public comments and the public hearings. Then once you finalize the final map, that's the final map. There's no next step of the process where the Council approves that. In fact the Council's only participation in this process is approval of your budget.
COMMISSIONER CAMARILLO: Mr. Chairman, it's not a legal question or procedure but I think it's just prudent that we first do the first draft and get input from the constituents, communities, and then finalize the map based on a broad...and then we submit that. Because the first draft is going to change.
CHAIRMAN PESQUEIRA; Yeah. No. I agree with you 100%. And that's why I'm hoping that we'll be able to have as much public communication and contact that we can, and that with Lisa sitting with us, that hopefully as we move along we can present various elements to see that we're still on the right track. That we're not running into the possibility of violation of Section 2 or Section 5. So that we want to try to stay ahead of the game all the way as we move along. And it's my hope that this summer is going to be a busy summer for us and that we will be getting as much possible feedback and that the communities out there will be wanting to talk with us and they'll present their cases and we'll be listening to those cases. I'm hoping that we can get a preliminary map in with a fairly good time frame so that we're...remember that our deadline hopefully is going to be the 1st of September. So, we want to try to have this thing moving along quickly.
COMMISSIONER CAMARILLO: I do have a specific question that's residue from 10 years ago. And that is, what is the legal basis for including the home residence of incumbent office holders as the consideration for drawing the lines? What's the legal basis for that?
MR. GIRARD: Well, there's a legal requirement that--in general--that an office holder from the district live within the district, but if my memory is correct, there would be a grandfathering of...for example, if the boundaries were to change and an existing Council member no longer lived in the boundaries that you would finalize, that that person could still serve until the end of the term. In other words, the person wouldn't be penalized merely because you redrew boundaries. But then thereafter, after that person's term ended, the representative would have to live within the district.
CHAIRMAN PESQUEIRA: I think because we are going to be hearing probably a lot of candidates who are going to be running, as we move toward the final days, what we don't want to do, if I understand it, is get caught in a situation where we could begin to consider candidates who are applying for various districts as to whether or not they live in the boundaries and thereby try to change the boundaries to include those candidates in the various districts. That, I think, is very clear in the amendment of the Charter that we will not consider where the candidates live.
COMMISSIONER CAMARILLO: That was one of the criteria of the Gang of Five ten years ago.
CHAIRMAN PESQUEIRA: You got that right.
COMMISSIONER ULLOA: I was going to ask if Mr. Girard is going to talk about Section 2 and Section 5 in a little bit more detail. I think you mentioned you were interested in doing that.
MR. GIRARD: I'd be happy to. I read Mr. Aguirre's comments and I guess I kind of noted the struggle you were having trying to understand what some of the concepts were. And I'm not sure that I'll be any more conversant than he was or you all were at the time, but I'll try.
As I read Section 2...Now Section 5 again...Section 5 is intended to prevent a retrogression in rights that have been obtained. Section 2 is the primary focus of the Voting Rights Act, and it exists I think in large part, or at least the focus of the lawsuit ten years ago, to prevent dilution of minority voting rights. And in order to remedy that, what the court looks at in determining whether there's a violation of Section 2 is...and they use statistics for a lot of this...Is there a core of minority voters that are sufficiently geographically compact and that vote consistently as a bloc, that in essence they should be considered as a district. Should the boundaries include them as a whole for purposes of creating a districtr rather than artificially dividing them to dilute the vote by drawing the boundaries down the middle of that geographic compartment, if you will. There's a basic charge, both in the Charter and in state law, that districts be geographically cohesive. I'm not sure that's the exact term. But the requirement is to prevent the so-called gerrymandering where you string out and create really weird-looking districts for whatever purpose. Usually it's to dilute minority voting rights. But there are other reasons for doing it.
So, what you don't want to do is, for example, look at a minority voting bloc in the southern part of the City, the same minority voting bloc in the northern part of the City, and say, "You've got to consider those as the same."
You can't under Section 2, because they're not geographically compact. But what you do want to do is try to identify as best as you can--is there a bloc here, do they vote cohesively on a general basis? And the case law says that there may be deviations on a given election, there may not be. But you're looking at long experience over time. Do they vote cohesively so that if you split them up, are you diluting the minority voting rights. So, it's kind of a 2-step process. Is there a geographical cohesiveness and is there a voting record cohesiveness that you need to take into consideration when you're drawing your district boundaries.
COMMISSIONER ULLOA: In terms of cohesiveness, do you mean do they vote for Democrats or Republicans? What subjects or issues do you look to to determine whether it's a cohesive voting pattern?
MR. GIRARD: It's generally candidates. At least that's what the case law seems to talk about. Does that minority bloc support a particular candidate as a bloc in a give election? For example, let's say you have candidates A, B and C in one election. Does that bloc, as a group, support candidate B? Next election, does that bloc--and you have candidates A, B, C and D--does that bloc support candidate D? It's...I think what you need to look at is, does the group that is geographically compact or geographically related support a single candidate in a given election without regard, necessarily, to whether it's a Democrat, Republican or some other party. I think they're looking at the singleness of the person as indicating the cohesiveness for voting purposes of the group.
COMMISSIONER MAGAÑA: Based on your comments then, I'm going to assume that we have data that we can look at that shows that there are groups and that we can point them out on a map.
MR. GIRARD: The census data will show that for you. And so you'll be able to put on a map, at least as I understand it, the census data will show you your population patterns and where the majorities live and where the minorities live. So, you should visually be able to see whether there's a geographical cohesiveness to a particular minority group. But then you need to do the next step. And you need to determine whether that group votes cohesively as a bloc in elections as a pattern. So, it's kind of a two-step process.
COMMISSIONER MAGAÑA: So, where do we get that second piece of information?
MS. STONE: From the Clerk's Office through the Registrar of Voters. We have precinct breakdowns for every City election.
CHAIRMAN PESQUEIRA: And we'll be getting those as we get the census material.
COMMISSIONER CAMARILLO: Mr. Girard, I believe 10 years ago, the person sitting in that chair was Ken So, who is a very competent judge, a very skilled attorney, and yet there was a lawsuit brought by the community who prevailed. And I heard you say Ms. Foster is a very competent attorney and I have no reason to question that. And I'm sure you're a very competent attorney. Having said all that, would you dissuade this body if it wanted to--on top of all the great expert advise internally that's available--if they wanted to enhance the comfort level of the plan, to seek the opinion of an expert attorney that...whose niche is this area of the law?
MR. GIRARD: I certainly would not dissuade you from doing that provided it was in your budget. No, absolutely not. I fully understand the seriousness of your charge and in my humble opinion if you...I would not be offended nor would I try to dissuade you from seeking expert advice from a lawyer or any consultant that is experienced in these matters. Absolutely not.
COMMISSIONER CAMARILLO: I'm just interested in getting a bullet-proof plan.
MR. GIRARD: I certainly understand your goal. And I would not dissuade you from trying to do that by the means that you suggest. Not at all.
CHAIRMAN PESQUEIRA: I know that we've got a very sensitive and very...and we have to be very careful about what we do here. Just throwing a figure out. If the figures that we...preliminary figures that show our population divided by eight districts appears around 160,000 to a district--is there a fudge factor in there? For example, we need to be as close to 160,000 all the way around. But I hear from time to time there is some kind of a percentage that we can fudge over or fudge under. Do you know anything about that?
MR. GIRARD: I know a little bit...enough to be dangerous. And the answer is you don't have to be right on. You do have leeway in terms of the exact population figures. There's no way you're going to be right on. I think there is a significant amount of leeway when you draw your boundaries. What the exact percentage might be that the case law deems appropriate I couldn't tell you. But I'm sure Lisa could advise you what that is.
I also would point out that while I have described two particular tests that you go through under Section 2, what the cases do say is that at the end of the day what the court looks at is the totality of the circumstances as well. In other words, the first two tests that I described is kind of a...it's not a litmus test, but it's kind of the pre-test, if you will, to see if there is a problem. But once you even get past those two tests, the court looks at the totality of the circumstances in terms of the ability of minority voting blocs to actively and effectively participate in the process. So, you...I would suggest that you too need to look at the totality of the circumstances and not just rely upon pure statistical data. If you look at some of the cases I think you'd be surprised at the high level of percentages of minorities that exist in a given district. But the courts say that given the totality of the circumstances they're not discriminated against. Because if you look at their participation throughout a period of time, the court has determined that they can effectively participate. So, it's a difficult issue to try to verbalize. There's no set formula for it. There are some tests that you can apply. But at the end of the day, you're also looking at the totality of the circumstances when you're finalizing the map that you'll send out.
COMMISSIONER ULLOA: Were there any other points that you had a different interpretation of from Mr. Aguirre's presentation last time?
MR. GIRARD: Not really. I just...again, my personal opinion is I'm not sure that the settlement agreement requires pre-clearance either by the Attorney General or the District Court. But if you wish to go down that road, I certainly think that's within your purview and would not to dissuade you doing otherwise.
CHAIRMAN PESQUEIRA: Well, I think the key word here is what (Commissioner Camarillo) just said. We want to bullet-proof this plan and make sure we have crossed every "t" and dotted every "i" and that we have treated the citizens of the City of San Diego with the utmost care and understanding and fairness to their needs. And that's going to be our goal as we move along. And of course I know that we'll be able to call on you for advice, and Lisa will be with us all the time to keep us in line, and she's got a whip back here that can sting. So, we're going to do our best to try to make sure that everything is fair and just.
MR. GIRARD: And I wish you all the best of luck, and if I or our office can be of any further service, please do not hesitate to call us.
REDISTRICTING COMMISSION ACTION (Tape location A200-B054.)
Chairman Pesqueira recessed the meeting at 4:52 p.m. into closed session to discuss candidates for the Chief of Staff position. Also present in closed session were Manager's Office liaison Kathy Mayou, Deputy City Attorney Lisa Foster, Commission Alternate Maxine Sherard, and Commission Alternate Helen Kinnaird. The open meeting will reconvene after closed session to make public the results of what was discussed in closed session.
Chairman Pesqueira reconvened the meeting at 6:00 p.m. to announce that during closed session the Commission decided and discussed the three staff positions. The Commission has selected two persons for the two positions. The third position will be announced after the Commission has an opportunity to contact that person.
The Commission has selected Ms. Staajabu Heshimu to be the Redistricting Operations Director. The Commission has selected Bonnie Stone to be the Redistricting Staff Analyst. The third person will be announced at the next meeting.
Chairman Pesqueira commented that the action taken in closed session was ratified by a motion and a vote.
REDISTRICTING COMMISSION ACTION (Tape location B055-083.)