MALDEF and LULAC Let Anaheim Know: No District 3 Election in 2016 Means Lawsuit in 2016

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Someone will inevitably wonder if this is Photoshopped. Uh … could be!

(Writer’s note: You may wonder why this piece is illustrated with a photo of Lou Correa, when Correa doesn’t even live in Anaheim.  Easy: Correa is running to represent most of the Anaheim flatlands in Congress; he has showed up to speak at at least one Anaheim meeting dealing with districting this year; and yet — unlike each of his three opponents in his CA-46 race — he does not appear to have taken any stand on the major conflict described in this story that is coming up on at the Dec. 8 Council Meeting.  Some people believe that, as he expects to pick up Councilmember Jordan Brandman’s endorsement once Brandman’s out of the Congressional race, he does not want to antagonize Brandman on this or most other issues.  So, basically, I’m trying to smoke him out.  Look, Lou — you’re our cover boy!  You can call Vern to give him your comment on all of this — IF you have one.)

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As I said back when it happened, (1) I expected the Anaheim City Council’s decision to leave District 3 — Anaheim’s sole majority Latino district — out of the 2016 elections was likely to lead to a lawsuit, and (2) I didn’t expect to have to be involved in filing it.  When I spoke at last week’s DPOC meeting, I said the same, explaining that while Michael Houston had advised the Council that there was no greater likelihood of a lawsuit if they accepted Kris Murray’s motion to exclude District 3 from the 2016 elections than if they accepted Mayor Tom Tait’s motion to include it in 2016. Joe Dunn, Candidate for CA-46 (against Jordan Brandman, in fact!) said that he agreed with my analysis and predicted a lawsuit, implying that he was at the ready if need be.

Well, it looks like I’ll just be able to sit back and feed other attorneys some information useful to their case, and Dunn just got himself a great campaign issue because the litigators with the most expertise in this sort of litigation have just shown up – and they are pissed.  Here comes the Mexican American Legal Defense and Education Fund — MALDEF!

Let’s start with their press release:

NEWS RELEASE FOR IMMEDIATE DISTRIBUTION December 3, 2015 CONTACT: Larry Gonzalez: (202) 466-0879 lgonzalez@rabengroup.com Donald Gatlin: (202) 587-2871 dgatlin@rabengroup.com MALDEF WARNS CITY OF ANAHEIM THAT IT RISKS LIABILITY FOR VIOLATION OF LATINO VOTING RIGHTS Delaying Meaningful Remedy Violates Federal Law LOS ANGELES – MALDEF and the California League of United Latin American Citizens (“CA LULAC”) today sent a letter to Anaheim, California Mayor Tom Tait warning that delaying the election in the only district designed to provide a voting rights remedy to Latino voters puts the city at risk for liability under the federal Voting Rights Act and the Fourteenth Amendment to the U.S. Constitution. In response to a legal challenge to its previous at-large city council election system, Anaheim is converting to the election of councilmembers by district.  On November 17, 2015, the Anaheim City Council voted 3-2 to exclude from the next election the only district where the majority of eligible voters are Latino.  The district map resulted from years of litigation under the California Voting Rights Act, the subsequent settlement of that case and the passage of Ballot Measures L and M.  The Advisory Committee of five retired Orange County Superior Court judges held numerous hearings and recommended the overall 6-district city council map that the Council adopted.  The Advisory Committee’s Final Report to the Council noted that the majority Latino electorate in District 3 would give Latino voters an effective opportunity to elect a candidate of choice, as required by the federal Voting Rights Act. At the November 17 meeting, every community member to speak urged the City Council to hold District 3 elections in the next municipal election – in November 2016.  The Council nonetheless voted to deprive District 3’s voters of the opportunity to elect a candidate of choice until November of 2018.  MALDEF views the action as legally indefensible against a claim of intentional discrimination prohibited by federal statutory and constitutional voting rights law. “There is no better demonstration of how insidious discrimination can be than the efforts of those in power to delay a meaningful remedy,” stated Thomas A. Saenz, MALDEF President and General Counsel.  “We saw this in the aftermath of the 1954 decision in Brown v. Board, and we still see it today; Anaheim’s decision to delay the election in District 3 is a regrettably familiar and ill-disguised example of entrenched resistance to justice and rectitude.” In the absence of a satisfactory response from the City at its December 8 meeting, MALDEF will consider litigation to address the violation of federal law.  “The Council’s actions are not just a matter of justice delayed.  The Council has deprived Latino voters of the remedy they won in litigation, of the form of government they overwhelmingly voted for in Measure L, and of the equal opportunity they expected to exercise by casting a meaningful vote in the 2016 election,” said Denise Hulett, MALDEF National Senior Counsel. The right to vote is fundamental to the strength of our democracy and must be protected for all citizens across the U.S.  MALDEF has continually fought for equal opportunity in elections systems for all communities throughout California, and will strive to protect the right to a political voice wherever it may be threatened. MALDEF’s letter to Mayor Tom Tait can be found here.

Excellent news there!  Congratulations to the gentlemen from LULAC on drawing MALDEF into this battle!

But for some real fun, let’s go have a look at that actual letter itself!

I have only three little things to contribute at this point:

(1) Jordan Brandman’s Letter Explaining His Vote as a Personal Vendetta

I’ve already, readers may recall, addressed and picked apart this letter at length here.  And honestly, I do not know how I can sufficiently thank the blogrus Chumley of Liberal OC for initially putting this screed where it was so easy to find:

The central committee’s action emanates from a personal political vendetta against me by Dr. Jose Moreno, an individual with whom I have had a long standing dispute. Dr. Moreno believes he should be granted a seat on the Anaheim City Council without having to earn community support and work for it. He is wrong. At no time during the selection process regarding which districts would be on the ballot this election cycle did I receive any personal communication from him, the author of the resolution Mr. (Jeff) LeTourneau, or Chair (Henry) Vandermeir. They never directly spoke to me, emailed me, wrote me, or called me. 

I have been one of the strongest supporters of single-member district elections to guarantee full representational equity in Anaheim. I endorsed the ballot initiative to create districts, signed the ballot argument in support with Mayor Tait, and actively campaigned for its passage. I have always fought hard for an Anaheim City Council that justly reflects the diverse makeup of our community and will continue to do so.

I have, in accordance with the map recommended by the districting committee, worked tirelessly to accomplish those goals. The current proposed ordinance includes putting two overwhelmingly Latino resident majority council districts on the ballot for November 2016 – District 4 which has a 68% Latino population & District 5 which as a 62% Latino population. The political action last night was more about choosing something specific that benefits one individual – Dr. Moreno, not the community.

I will continue to support efforts to increase minority and community participation in the political process, but I will not give in to political deals that pretend to benefit the whole community when, in reality, they only benefit one individual.

I want to  be in the courtroom when that masterpiece of arrogant pique — coupled with a remarkably dramatic explicit failure to understand what is even going on with this area of law, given his argument that a 61% Latino population district is as good as a majority Latino citizens of voting age district — goes to the jury.  This presumes no earlier summary judgment for plaintiff, which I suspect this may be justified given the deluded Brandman having been the deciding vote on these declared bases.  This is great stuff!

(2) Fact is, District 2 Both Has Been and Will Likely Continue to Be Well-Represented on Council

It’s true that there’s no candidate currently living in District 2 on the Council.  But there’s a candidate who lives right next to District 2 and who tried hard to get her home included in District 2 — and who even made a forced joke about the prospect of her moving into District 2 for the 2016 election.  That is Lucille Kring.  Kring had been open — and she will likely know how I know this — about her desire to get her house included with one or the other of the West Anaheim districts.  She does not want to face election before a substantially Latino (and likely well-organized) electorate in District 4.  So it likely will be fairly easy to show that she herself — by her aspiration, her probable rental of a room in District 2 convincing enough to clear the low bar that Michael Houston would set for her to have residency there, and by the match with her voting patterns — is the missing District 2 representative that supposedly justifies getting it their own chosen person ASAP.  It will probably also be possible to show that — as nice and thoughtful a guy as he is — conservative Republican (who lives near the border of District 3 with District 5) is not actually the guy who obviates the need to let Central Anaheim’s Latinos to choose their own favored representative ASAP.

(3) City Attorney Michael Houston’s Mangled Advice to the City Council

Mayor Tom Tait asked City Attorney Michael Houston whether it was true that even if (as Houston argued) there was a good case that excluding District 3 from 2016 was a legally acceptable choice for the Council to make, there wasn’t a better case — a “litigation-avoiding” case — to be made for including District 3 among the group for 2016.  City Houston wouldn’t go even that far, arguing that this was not a case they could lose because voting discrimination cases required a history of discrimination in a given district and these were new districts with no such history.

I have real strong doubts about Houston’s assertion there — on its face, it would suggest that the first time a city or county ever did districting, there was literally no restraint on the amount of racial gerrymandering they could do, but even if it were a matter of deciding where to provide and where to immediately provide representation and where not to, as here, I still think that his conclusion is misapplied.  But it doesn’t matter much because — and I haven’t yet contacted UCI Law School’s national voting law expert on this, Rick Hasen, about this, but it wouldn’t surprise me if his faculty colleague Joe Dunn has already done so —  as I recall there’s a separate route to showing impropriety of Council action: and that is a show of animus.  That is: the Council’s directly expressing or demonstrating its hostility to a given racial or ethnic group.

I raised this directly to Houston after the earlier meeting, while I was still out on the patio blowing steam off of the top of my head.  He was walking out of the building through the back entrance.  Someone had pushed one of the front doors open, and we saw each other, so I shouted into the building:

DIAMOND:  Animus, Mike!

HOUSTON:  Doesn’t apply.

DIAMOND:  We’ll see about that.

HOUSTON (Head over his shoulders as he was walking away):  I dare you to try.

DIAMOND:  Mmmmpf!  (Door had by then swung closed, so whatever I may have said then couldn’t be heard.)

(I’m not sure of the precise wording of that second line of mine; Houston is welcome to offer his own memory of it.)

Well, in a case involving animus, I don’t think that there’s any way that the three members of the Council majority — especially Lucille Kring — survive seven hours in discovery, going over all of her votes and public statements over the years, without giving MALDEF all of the information they will need to show malice.

As somewhat of an expert on what these three (and let’s not forget their close ally Gail Eastman, so thankful for the 2012 riots ending a Council meeting without any pro-Latino voting) have said and done over the past few years regarding Latinos, I would certainly be interest in trying to offer my services to MALDEF to help prep this case.  After all, they’re going to win, so all I’d work for is the expectation of consulting fees, for which I’d give excellent value.

(If Jordan wants a compelling justification to change his vote next Tuesday to avoid the doomed and expensive defense of a lawsuit, I can barely imagine a stronger reason for him to want to do so than avoiding that!)