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1. Anaheim’s choice of districts is more interesting than you think
It may seem like a bit of a stretch to say that the decision of the Anaheim City Council at last week’s meeting to create “Santa Ana style” districts — don’t worry, that’s explained below — is actually of serious historical and legal significance, but in a way I think that it is. I hope that Judge Franz Miller, who will rule on the ACLU lawsuit to establish a system of districts with residency requirements so as to reduce the city’s lack of representation of Latinos on July 9, thinks so as well.
Having decided not to firmly reject any residency requirements at all, Anaheim’s City Council has decided to try to confuse the issue instead. In the process, it has blundered into addressing a truly fundamental question: what do we actually mean by voting discrimination? Is it an offense against individual people or an offense against populations?
Anaheim’s lack of districts in its highly segregated city, politically dominated by non-Latino Anaheim Hills, means both that it’s hard for Latinos to get elected to the City Council and that it’s hard for Latinos to get to decide who sits on City Council. Reformers (including me) have argued that they should solve both problems by creating districts where only people in a given district may vote for a representative who comes from that district. Anaheim has offered what it says is a compromise: they’ll draw districts and make sure that one City Council member must come from each of that district — but they still want the entire city, meaning mostly the powerful minority of Anaheim Hills, to choose who that should be.
That doesn’t solve the problem. In fact, it’s designed not to solve the problem. If you want to see why, imagine that billion-person China and the 300,000-strong United States merged politically. Anaheim’s proposed plan — called the “Santa Ana Plan” after the city that currently uses such a system — would be like saying that China, with its overwhelming majority of voters, could choose the candidate of their choice for each state, so long as that candidate came from that state. You might well say, “So what? They’re still going to elect whoever the Chinese prefer. That’s not democracy.” (Indeed!)
You might instead prefer a system where only the people from each state would choose a representative from among themselves — as reformers wanted. That’s an easy call. But here’s the interesting part: what if you could choose between two things: (1) that the candidate to represent each state had to come from that state or (2) that only the voters of that state could vote, although the candidate could come from anywhere? You should pick what’s behind Door Number 2. China may choose to put forth its candidate (residing in China) to represent Nevada, or California, or Florida, but so long as each of those states would prefer to be represented by someone who resides in that state, it wouldn’t matter what China did. The important thing, when it comes to residency, is not who can be chosen, but who chooses.
What’s really interesting — what shines a spotlight on the intentions of the politicians with a stranglehold on Anaheim — is that Anaheim said that it would choose only one form of residency requirement — and then it chose the wrong one. It chose the one that would allow Anaheim Hills — like China in my fanciful example above — to choose the person from each district that would be the most favorable to the interests of Anaheim Hills. It chose the solution that leaves Anaheim Hills with complete power over its City Council.
So how do we fix the problem of Anaheim politics, if we’re really limited to choosing only one form of residency requirement? Make them choose the other one. Make them run the Santa Ana Plan backwards — the “Ana Atnas” Plan? — so that anyone can run anywhere, but they had better be able figure out how to appeal to the members of that district. They had better let the voters get what they want.
To my knowledge, Juice writer Cynthia Ward is the first one who broached this possibility with respect to Anaheim. It’s not anything unfamiliar to our system though. Do you know where we use a plan that requires voter residency but not candidate residency? In elections to the U.S. House of Representatives! All you have to do, to get elected to a House seat in a state with more than one of them, is to reside anywhere in the state. (That’s right — you can run for any House seat you want within the State of California.) You probably won’t win, because voters tend to value having a representative that lives in their district, but sometimes candidates from outside the district do win. (Did Rep. Gary Miller move? If he did, he didn’t have to.) Sometimes ideology is more important, especially if someone at least lives nearby. By contrast, for State Legislative races, you do have to actually live in the district you’re running to represent. (Or, if you’re someone like State Senator Mimi Walters, you may be able to successfully lie about it.)
If Judge Franz Miller is on the ball — and I’ve heard that he usually is — he’ll reject the “Santa Ana” plan of candidate residency only. But if he wants to give the plaintiffs only one residency requirement, it should be the “Ana Atnas” plan: residency for voters. But he’ll probably impose both.
The surprising thing about this is that the “Ana Atnas” Plan ought to be preferable to both Gail Eastman and Lucille Kring. That’s right: they should actually prefer the Ana Atnas Plan — voter residency only — to whatever solution that Judge Miller will probably otherwise impose in this case. That means that one or both of them should want to reconsider the resolution from last week before July 9 and vote to put a voter residency requirement onto the ballot. Electoral politics involves self-interest — and their self-interest (unlike Kris Murray’s) should be to keep Judge Miller’s worse ruling at bay by choosing a plan that doesn’t knock them right out of city politics.
I explain that way down at the bottom. If you want to skip to there, I’ll understand.
2. Let’s try that again, without mentioning China
OK, experience has taught me that some readers here won’t be able to get past that “China” example — so let me try it another way. I’ll be less fanciful this time.
You can try to eliminate voting discrimination in two general ways. First, you can make it easier more likely for some individual people who belong to a group facing discrimination to win office. Second, you can make it easier for people in a group facing discrimination to exert political power. On average, this will probably make it more likely that they will elect someone from their group — although in any given political race between a member of that group and a non-member, the disadvantaged group may decide, overall, that the candidate who isn’t from the disadvantaged group may represent their interests better than the one who is.
The clearest way to inhibit discrimination caused by the fact that generally non-Latino Anaheim Hills has so much more political power than largely Latino Anaheim Flatlands — when oh when will people agree to let me call them the “Flats”? — would be to create districts and require that (1) only voters living in a given district vote for (2) a candidate living in that district. (This is, for example, how we pick United States Senators.) But note that the two residency requirements — for who makes up the electorate in a district and for who runs for office from that district — serve different purposes.
If districts are ethnically homogenous, then a candidate residency requirement makes it more likely that the eventual Council will have an ethnically diverse composition. A voter residency requirement makes it more likely that a given electorate will be able to determine its own choices. These are not the same thing.
The City of Santa Ana has districts (called wards) with a candidate residency requirement (which I’ve heard is not particularly well-enforced) but no voter residency requirement. That means that, theoretically, the City Council should be composed of people from all parts of the city. But it also means that if one group of voters can dominate the city, it theoretically gets to choose all of the representatives from each city ward.
In Santa Ana, this is not much of a problem — except for it setting a bad example for Anaheim. The city is 78% Latino. While Latinos tend to have lower socio-economic status on average than non-Latino whites, that’s still enough power to elect Latinos when they want to — and in very recent years they have wanted to. Latino dominance is a bit unfair to Asians and non-Latino whites, and if a district system were imposed there it might well mean more white and Asian City Council members. However, Santa Ana is so overwhelmingly Latino that the difference it would make is relatively slight. Limiting voting for a given Council member to the Ward from which they come is something worth doing, but it probably has little actual effect. (The election of Angelica Amezcua, who finished third in the Third Ward, seems to be one place where it did.)
3. But why are we worrying about race and ethnicity at all?
As you may suspect, Anaheim probably discriminates as much or more based on income and class as it does based on race and ethnicity. So why doesn’t the ACLU sue on the basis of class and income differences — the solution proposed (or whatever he was doing) by Gustavo Arellano? Easy: you can’t sue under the Voting Rights Act (or “VRA”) over the former. The VRA deals with discrimination based on demographic characteristics, the sort of thing that has often torn apart societies.
Maybe disparities based on income should be expected to tear apart societies, but they generally don’t. In fact, fostering inter-group conflict based on demographics — such as between poor whites and black former slaves, or between working class people and unauthorized immigrants from Asia or Latin America — has been one of the most effective ways of preventing revolution based on income and class.
Fortunately for those suing under the Voting Rights Act, although unfortunately in pretty much every other way, race and class tend to be be reasonably well-correlated, so an effective remedy for discrimination based on the former will tend to also take care of the latter. Because of this, a court can —
Wait a moment. Before I go on, I’m going to do a trick. I’m going to read your mind.
Ready? Hummmmmmm … got it!
4. Individual examples and collective averages
You’re thinking of upper-class minorities and lower-class whites, the existence of whom seems to disprove this rule — right?
Yep, there are wealthy minorities and there are impoverished whites. If you think that that disproves the rule, you have plenty of company — the Supreme Court of the United States itself may, in fact, say something of that sort within the week. But, you’re wrong. You’re confusing the individual and the group level of analysis — and if you’re a conservative politician, you may be doing this intentionally.
Here, I’ll prove it to you using the example of the weather.
Which international airport is warmer, the one in San Francisco or the one in Los Angeles? Most of you will probably say that it’s Los Angeles, right? You’re right: there is no month in the year in which the average high or low temperature in San Francisco exceeds the according one in Los Angeles. General factors (such as, primarily, latitude) operate to make Los Angeles warmer than San Francisco on average.
And yet, if one is paying attention to weather data, it’s not hard at all in a given year to find a fair number of days when San Francisco is warmer. (Warm front goes north, cool front stays south.) It happens. Those days when it’s warmer in San Francisco are like Latinos living in Anaheim Hills. Those days when its cooler in Los Angeles are like whites living on Anna Drive or Guinida Lane. That also happens. And yet, overall, there is a clear difference between the socio-economic-status of whites and Latinos in Anaheim — and, especially in Anaheim, political power tends to follow socio-economic power.
Jumping over to a medical analogy for a moment, you can think of the latitude of SF and LA — or the socio-economic status of a given white or Latino in Anaheim — as underlying conditions. You can think of how warm or cool a given day is — or the power and wealth a given person has — as symptoms of those underlying conditions. Whether symptoms appear in a person — fatigue, pain, dizziness, shortness of breath — is partly a matter of underlying conditions and partly a matter of random chance.
Why does this matter? Because we should be interested in fixing general underlying conditions, not in just curing a few people’s symptoms.
Not electing Latinos to Anaheim’s council isn’t the underlying condition; it’s a symptom of the underlying condition. The underlying condition is the lack of political power within Anaheim’s Latino communities. Coming up with a treatment of symptoms — getting more Latinos onto City Council without addressing the underlying problem that has preventing it, is not enough. It’s a cosmetic treatment only. Discrimination would continue to keep actual power out of the hands of Anaheim’s Latinos.
(Indeed, I don’t think it’s too cynical to suggest that that’s the point!)
So, electing a few Latinos who are most congenial to the voters of Anaheim Hills doesn’t do much. Fine — they become individual exceptions to the general rule — but the rule remains. (Finding a few smokers that don’t get lung cancer or a few non-smokers that do, or fat people who don’t get diabetes and thin people that do, doesn’t disprove the underlying cause-and-effect relationship. If you look for exceptions to a rule of thumb, you’re generally going to find them.)
The justification that the Anaheim Council will offer for offering a plan that will get a few token Latinos elected is that that’s all that’s needed to end discrimination. But discrimination isn’t defeated by a few individual success stories, just as the greater general warmth of Los Angeles isn’t rebutted by an occasional San Francisco heat wave. To say that climate has changed, we need to aggregate many observations over time — the equivalent of looking at the political power of many people in Anaheim, not just the most successful few. Conservatives resist that because they have (or offer) a different sense of discrimination.
5. Conservative and liberal models of discrimination
We currently have an African-American President. We have an African-American Supreme Court Justice, Clarence Thomas, who rails against most affirmative action laws and other protections for minorities. We have one African-American U.S. Senator in the country: Tim Scott, a very conservative man from South Carolina. The Attorney General in Ohio during the 2004 elections, who took many steps to disenfranchise African-American voters, was Ken Blackwell — himself African-American. The nominee for Lieutenant Governor in Virginia, E.W. Jackson, is an Obama-hating African-American. (Sometimes a heat wave strikes San Francisco.)
Conservatives tend to believe that so long as you can show exceptions — some Latinos (or at least minorities) get elected to the City Council, then the problem is solved. This is favoring “form” over “substance.” Clarence Thomas has dark skin and African-American features, but he rejects most of the ideological positions held by African-Americans. (Form, check! Substance, no.) This is sometimes called “tokenism” — finding someone who has the right “form” but who will act as if they didn’t.
Liberals tend to favor substance over form when it comes to discrimination. Form isn’t entirely unimportant — it’s very nice that Reagan appointed Sandra Day O’Connor to the Supreme Court and broke that glass ceiling, in part because of how it inspired young women (and in part because she didn’t turn out to be the female version of Clarence Thomas.) However, if and when she made decision that damaged what most women considered to be their interests as women, the substantive discrepancy would take away much of the appeal of the form.
That’s exactly what the leaders elected by Anaheim Hills — even those who live outside of that area, like Lucille Kring, Gail Eastman, and Jordan Brandman — want. Form without substance. Voting discrimination law is not supposed to provide that.
6. What ought to happen now — and why the Council might want to go along with it
Judge Miller, as noted before, should decide the case in favor of Plaintiffs and give them what they asked for: voter residency and candidate residency requirements. I think that he’ll do just that. (Plus, he’ll award the ACLU a whole bunch of fees and costs, but that’s going to happen anyway. Maybe Anaheim could buy them off with a private tennis court.)
However, the decision was only delayed to give Anaheim a chance to come up with a solution voluntarily. If they choose the Santa Ana Plan — candidate residency but no voter residency requirement — that should not be good enough, for reasons that are by now probably painfully clear. However, if they’d agree to the Ana Atnas Plan — voter residency but no candidate residency requirement — I think that he should approve the settlement.
Gail Eastman and Lucille Kring should RUSH to take that deal. Why? Because if the ACLU’s desired plan goes through, they’re either out of Anaheim politics or they’re moving.
Eastman lives in the Anaheim Colony near Jordan Brandman. Unless some pretty obviously fishy districting happened to separate them — and even if it did — Eastman is not going to be re-elected to the City Council from her district over Brandman, who has the Democratic label available to wave around that Democratic section of town. (Her best bet, in fact, would be to vote for eight districts rather than six — one more possible spot for her! That would take away another possible basis for appeal.)
Kring, meanwhile, lives in the south central part of Anaheim — and there is probably literally no way to get her into a district with a Republican majority other than snaking a city-block-wide corridor down the south border of the city until it got to Anaheim Hills and blossomed to take over much of the area. That’s not going to happen.
Kring is reportedly being courted by supporters to run for Mayor against Tait next year. (This would require changing the City Charter to allow a Council Member to run for Mayor midterm — as happens routinely, for example, in Irvine. NOW does the Charter Review Commission — and Pringle’s personal presence on it — make sense to you?) This would spare her from running a race in a district that, after all of the giveaway giving she’s been doing, would likely hate her. But if she runs for Mayor, she could run before the city’s entire electorate. Wouldn’t that help her?
No. Indeed, she’d be crushed. Tait is a seasoned and well-liked politician for reasons well-beyond policy, with many ties to people in Anaheim Hills (who, not personally profiting from the giveaways, are likely to forgiving him his resistance to the self-serving Pringle.) He’ll also likely get lots of Democratic votes. (Do you think that Brandman would have coattails for Kring in the city? First — no he won’t. Second, Kring would be a complete idiot to trust him.)
We know that Tait will vote for a fair settlement offer. Brandman already did vote for one with Tait — that’s why the vote was 3-2 — before voting for Murray’s proposal (making that vote 4-1.) Reversing himself on support for Tait’s proposal — or for an Ana Atnas version of it, which politically would suit his ambitions just fine — would be as close to unthinkable as it could get for Jordan. So that means that either of the women other than Murray, could vote with Tait and spare their own political fortunes. Brandman provides the third vote — and Judge Miller agrees with a settlement.
Of course, if they’re at all irritated with Brandman by now, they could let Tait put forth an Ana Atnas proposal, wait until Brandman opposes it, and then both switch, leaving him on the losing side of a vote joined only by fellow Pringle-tool Murray. That would be really funny. I’m going to try hard not to root for it.
Either way — whoever is telling Eastman and Kring that letting matters be decided by Judge Miller is best for them is flat-out lying to them. They have about a week left to figure that out and do something about it.