Cano v. Davis, CV 01-08477MMMRCX.
| Decision Date | 05 November 2001 |
| Docket Number | No. CV 01-08477MMMRCX.,CV 01-08477MMMRCX. |
| Citation | 191 F.Supp.2d 1135 |
| Parties | Mario CANO; Paula Rangel; Maria Calleros; Norma E. Ramirez; Margo Munoz; Bennie G. Corona; Myron Garcia; Frank Diaz; Consuelo E. Rodriguez; Jose Ruelas; Racquel Torres; Enrique F. Aranda; Josephine Santiago; Antonio M. Lopez; Jose R. Pacheco; Luis Natividad; Marisol Natividad; Luis Garcia; Luz Palomino; Silvia Palomino; Ignacio Leon; Joaquin Galan; Ernesto Bustillos; Cathy Espitia; Salvadoran American Leadership and Educational Fund, Plaintiff(s), v. Gray DAVIS, in his official capacity as Governor of the State of California; Cruz Bustamante, in his official capacity as Lieutenant Governor of the State of California; Bill Jones, in his official capacity as Secretary of State of the State of California; John Burton, in his official capacity as President Pro Tempore of the California State Senate; Robert Hertzberg, in his official capacity as Speaker of the California State Assembly, Defendant(s). |
| Court | U.S. District Court — Central District of California |
Vibiana Andrade, Thomas A. Saenz, Antonia Hernandez, Steven Joaquin Reyes, Los Angeles, CA, Denise M. Hulett, San Francisco, CA, Maria Blanco, Sacramento, CA, for Plaintiffs.
Otto I. Pena, Otto I Pena Law Offices, Los Angeles, CA, Gail H. Morse, Jenner & Block, Chicago, IL, for Intervenors.
Lois R. Mauro, Jennifer Kathryn Rockwell, CAAG Office of Attorney General of California Correctional Law Section, Sacramento, CA, Bruce A. Wessel, Jonathan H. Steinberg, Elliot N. Brown, Laura W. Brill, Irell & Manella, Los Angeles, CA, Thomas E. Gauthier, George Waters, Olson Hagel Waters & Fishburn, Sacramento, CA, Robin B. Johansen, Miguel Marquez, Kathleen J. Purcell, Joseph Remcho, Remcho Johansen & Purcell, San Leandro, CA, for Defendants.
Holger G. Besch, Jones Day Reavis & Pogue, Los Angeles, CA, Andrew McBride, Wiley Rein & Fielding, Michael A. Carvin, Jones Day Reavis & Pogue, Washington, DC, Eric R. Wiesel, Donald H. Heller, Donald H. Heller Law Offices, Sacramento, CA, for Intervenor Defendants.
Geraldine R. Gennet, Kerry W. Kircher, Office of the General Counsel, Washington, DC, for Amicus.
Gerson A. Zweifach, Paul Mogin, Williams & Connolly, Washington, DC, Charles F. Kester, Kester & Isenberg, Encino, CA, for Movants.
Before: STEPHEN REINHARDT, Circuit Judge, MARGARET M. MORROW and CHRISTINA A. SNYDER, District Judges.1
ORDER DENYING PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER
Following the decennial census conducted in 2000, the California legislature passed, and the Governor signed, a bill that re-drew state and federal legislative district boundaries in accordance with the new census data. The redistricting legislation was signed into law by the Governor on September 27, 2001. A number of Latino voters filed this action challenging the legality of the redistricting plan four days thereafter. The plaintiffs assert that three of the plan's provisions have the unlawful effect of diluting Latino voters' ability to elect representatives of choice.
Specifically, plaintiffs contend that: (1) Congressional districts 27 and 28 unlawfully divide the Latino community in a portion of Los Angeles County's San Fernando Valley into two districts instead of preserving the integrity of that community and establishing one majority-Latino district in which Latinos could elect a representative of choice;2 (2) Congressional district 51, which encompasses parts of San Diego and Imperial Counties, unlawfully excludes certain Latino neighborhoods that, if included, would preserve the integrity of that Latino community and allow Latinos in that district to elect a representative of choice; and (3) Senate district 27 violates the integrity of the Latino community of Southeast Los Angeles County and fails to place its residents in a majority-Latino district in which Latinos could elect a representative of choice. Plaintiffs seek a temporary restraining order that would enjoin the State of California from conducting primary elections scheduled for March 2002 in congressional districts 27, 28, 51 and 53.3 On October 31, 2001, the court heard extensive oral argument on the matter. For the following reasons, the request for a temporary restraining order is denied.
To obtain interim relief, a party must establish either probable success on the merits and irreparable injury, or "sufficiently serious questions going to the merits to make the case a fair ground for litigation, with the balance of hardships tipping decidedly in its favor." See Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998). Additionally, as the parties recognize, enjoining an election is an "extraordinary remedy" involving a far-reaching power, Oden v. Brittain, 396 U.S. 1210, 1211, 90 S.Ct. 4, 24 L.Ed.2d 32 (1969) (Black, J., Circuit Justice), which is almost never exercised by federal courts prior to a determination on the merits, other than in cases involving a violation of the preclearance requirement of § 5 of the Voting Rights Act.
Plaintiffs' legal theories are threefold. First, they allege that each of the challenged redistricting decisions has the effect of diluting Latino voting power in contravention of § 2 of the Voting Rights Act, 42 U.S.C. § 1973. Second, they assert that the challenged congressional districts were intentionally drawn to dilute Latino votes, and violate § 2 for that reason as well; similarly, they contend that the intentional dilution violates Constitution. Finally, they contend that the congressional districts constitute an improper "racial gerrymander" under the cause of action established by the Supreme Court in Shaw v. Reno, 509 U.S. 630, 648, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). Allegations that racial discrimination has infected the process by which elected representatives are chosen must be of the highest concern to any court to which they are presented, for all "[o]ther rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
At the oral hearing and in their papers, both parties directed their arguments primarily to the challenge to two San Fernando Valley congressional districts, districts 27 and 28. Plaintiffs submitted evidence that a consultant to the state legislature's redistricting committee made several statements that reflected a legislative intent to establish the Latino population in each of those districts at a level such that neither Anglo incumbent would be susceptible to a serious primary challenge by a Latino candidate; they also submitted expert testimony that, by deliberately placing a number of Latino voters in the 27th district who should properly have been in the 28th, the final redistricting plan achieved that objective. Plaintiffs also rely on evidence that in the course of the legislative redistricting efforts, a substantial number of additional Latino voters were first moved to the 27th district and then restored to the 28th after the Anglo incumbent in the 27th vehemently objected to the inclusion of so many Latino voters in his district. Additionally, plaintiffs submitted statistical evidence demonstrating that prior to redistricting the Latino voting age population in the 28th congressional district was 60.02%, while in the final redistricting plan it was reduced to 49.18%. The percentage of voting age Latinos was reduced even though over the preceding decade the district's Latino voting age population had increased by 41%, and the non-Latino voting age population had decreased substantially.
Defendants dispute both the factual accuracy and the legal significance of much of the plaintiffs' evidence. They contend that race was one of many factors properly considered by the legislature in redistricting, and that there was no intent to dilute the strength of Latino votes in any of the affected congressional districts. Among the factors considered by the legislature, defendants contend, were the protection of incumbents, the restoration of previously represented areas to a long-time incumbent's district, the need to assure...
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