By Raoul Lowery Contreras
Generals are always criticized for fighting the last war; city councils and cities that fight district elections are fighting the war before last.
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Poway, with 50,000 people and one of the county’s wealthiest populations (median household income of $98,859 and only 5.9 percent in poverty), decided to change its at-large city council elections to district elections. It did so after a lawsuit was threatened by a Malibu-based lawyer who has sued other cities under the California Voting Rights Act.
The law essentially makes at-large school district and city council elections untenable if there is a minority voting block in the district or city; it’s intended to help elect minority candidates.
Of Poway’s 50,000 people, 2 percent are black, 64.5 percent white, 11 percent Asian and 18.3 percent Hispanic.
Unlike other cities with “barrios” and “ghettos” Poway doesn’t have any, so crafting a city council district that can come close to electing a minority representative is difficult. Nonetheless, the chances of electing a minority by at-large elections are almost nil.
The basis for the California law is the 1965 federal act that addressed the dilution of minority voting nationally.
At-large council elections in San Diego kept Mexican-American candidates from being elected to the council from 1850 until 1993, when Juan Vargas — now a congressman — was elected. He was the first Mexican-American on the council who had not been appointed first.
The reason was simple — campaign financing. In the 1960s, for example, three of the five San Diego Unified School District Board of Education members lived in Point Loma. It wasn’t until district elections were adopted by both the city and San Diego Unified that districts nominated and elected their own representatives.
Malibu Attorney Kevin Shenkman contacted numerous school boards and cities in San Diego County last year “suggesting” they change from at-large to district elections as per the law, or he would sue. Those demands went to, among others, the cities of Carlsbad, Oceanside, San Marcos, Poway and Vista. All, including Poway, have or are converting to by-district elections.
The change and the reason for the change did not sit well with former Poway Mayor Don Higginson who, with East Coast legal help, sued to stop the conversion to by-district council elections. He asked for a preliminary injunction in federal court that would have stopped district elections until formal court hearings for a permanent injunction.
Most on the council didn’t want to convert because they were all elected in at-large elections. But faced with potentially huge legal fees fighting a case no city or district has won in California, they changed the system. Higginson took to a community newspaper to protest.
Conservative Edward Blum, active nationally against laws that favor better political treatment and opportunities based on race, contacted Higginson and brought his “non-profit Project on Fair Representation” into the mix and off they went to federal court.
Their legal theory: by-district elections are unconstitutional because they deny all citizens the right to vote for all their representatives.
There is a 30,000-foot-high constitutional explanation why that theory is baloney. All citizens in a district can elect their own representative. In other words, each citizen has a better opportunity to have a representative who is known, accessible and desired.
Moreover, U.S. District Court judge William Q. Hayes ruled that Higginson didn’t have standing to sue because he didn’t show a direct link between the 2001 voting rights act and Poway’s voluntary decision to switch to by-district elections. The judge also said Higginson didn’t show that he was harmed by the district election process that many say is more democratic than at-large elections.
Remember how three of the San Diego Unified board members lived in one neighborhood in Point Loma?
Higginson’s lawsuit was his own, not that of the city of Poway. In fact, the official city legal position is “the city is not interested in spending the taxpayers’ money on this issue,” according to the city’s lawyer. Higginson says, “we intend to appeal this decision in some manner.”
This challenge is off base. The change to district elections was a council decision. Higginson should have tried a voter referendum to overrule the council. If a court had ordered it, court was the place to go. No court did.
Higginson had his day in court; he will not succeed on appeal. We are all better off for his loss. If elected legislators can’t legislate, why do we elect them?
Raoul Lowery Contreras is a political consultant and the author of “The Armenian Lobby & American Foreign Policy” and “The Mexican Border: Immigration, War and a Trillion Dollars in Trade.” His work has appeared in the New American News Service of the New York Times Syndicate.
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