Luna v. Cnty. of Kern

• Decision Date: 23 February 2018
• Docket Number: No. 1:16–cv–00568–DAD–JLT,1:16–cv–00568–DAD–JLT
• Citation: 291 F.Supp.3d 1088
• Parties: Oscar LUNA, Alicia Puentes, Dorothy Velasquez, and Gary Rodriguez, Plaintiffs, v. COUNTY OF KERN, Kern County Board of Supervisors, Mick Gleason, Zack Scrivner, Mike Maggard, David Couch, and Leticia Perez, in their official capacities as members of the Kern County Board of Supervisors, John Nilon, in his official capacity as Kern County Administrative Officer, and Mary B. Bedard, in her official capacity as Kern County Registrar of Voters, Defendants.
• Court: U.S. District Court — Eastern District of California

291 F.Supp.3d 1088

Oscar LUNA, Alicia Puentes, Dorothy Velasquez, and Gary Rodriguez, Plaintiffs,

v.COUNTY OF KERN, Kern County Board of Supervisors, Mick Gleason, Zack Scrivner, Mike Maggard, David Couch, and Leticia Perez, in their official capacities as members of the Kern County Board of Supervisors, John Nilon, in his official capacity as Kern County Administrative Officer, and Mary B. Bedard, in her official capacity as Kern County Registrar of Voters, Defendants.

No. 1:16–cv–00568–DAD–JLT

United States District Court, E.D. California.

Signed February 23, 2018

Denise Hulett, Mexican American Legal Defense and Educational Fund, San Francisco, CA, Tanya Gabrielle Pellegrini, Mexican American Legal Defense and Educational Fund, Sacramento, CA, Thomas Andrew Saenz, Julia A. Gomez, Mexican American Legal Defense and Education Fund, Matthew Jimenez Barragan, Los Angeles, CA, Joaquin G. Avila, Law Office of Joaquin G. Avila, Shoreline, WA, for Plaintiffs.

James Edward Barolo, Christopher Elliott Skinnell, Hilary Jones Gibson, Marguerite Mary Leoni, Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, San Rafael, CA, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dale A. Drozd, UNITED STATES DISTRICT JUDGE

On April 22, 2016, plaintiffs, who are Latino¹ citizens and registered voters in Kern County, commenced this action against the County of Kern, its Board of Supervisors, and other County officials (collectively, "defendants"), challenging Kern County's 2011 redistricting plan under § 2 of the Voting Rights Act, 42 U.S.C. § 1973. Plaintiffs allege that the County's 2011 redistricting plan impermissibly dilutes the Latino vote in Kern County and thereby denies Latinos the opportunity to elect representatives of their choice. After the court denied plaintiffs' motion for partial summary judgment (Doc. No. 79), the action proceeded to an eleven-day bench trial, which concluded on December 19, 2017.

At trial, plaintiffs offered the testimony of three experts.² David Ely, plaintiffs' demography expert, testified that a second majority-Latino supervisorial district in Kern County could have been created in 2011. Dr. Morgan Kousser, plaintiffs' statistical expert, testified regarding the presence of racially polarized voting in Kern County. Finally, Dr. Albert Camarillo, plaintiffs' expert historian, testified about the history of discrimination against Latinos in Kern County and throughout the state of California. In addition, plaintiffs offered the testimony of Dorothy Velazquez, Gary Rodriguez, Dolores Huerta, Sam Ramirez, Leticia Perez, and Allan Krauter. Ms. Velazquez and Mr. Rodriguez are plaintiffs in this action and Latino registered voters of Kern County. Ms. Huerta is a renowned civil rights and labor activist, and a long-time Kern County resident. Mr. Ramirez is a former candidate for Kern County Board of Supervisors representing District 2, and Supervisor Perez is currently on the Board of Supervisors representing District 5, the sole majority-Latino district in Kern County. Mr. Krauter, who was called by plaintiffs as an adverse witness, was a legislative analyst in the Kern County Administrative Office ("CAO") at the time of the 2011 redistricting and was primarily responsible for assimilating input, creating the redistricting map options for the Board's consideration, and making recommendations concerning which map should be adopted.

At trial, defendants also offered the testimony of three experts. In their testimony, demographer Dr. Douglas Johnson and the County's Planning & Natural Resources Department director Lorelei Oviatt rebutted the feasibility of creating a second majority-Latino supervisorial district in Kern County that would also maintain communities of interest. Defendants' statistical expert Dr. Jonathan Katz testified in rebuttal to plaintiffs' evidence of racially polarized voting in Kern County. Defendants also offered the testimony of Allan Krauter, John Nilon, Michael Gleason, Zack Scrivner, William Maggard, Jonathan McQuiston, Raymond Watson, Alan Christensen, Kimberly Salas, Teresa Hitchcock, and Karen Rhea. Mr. Nilon was the head of the CAO at the time of the 2011 redistricting, overseeing the work of Mr. Krauter. Mr. Gleason, Mr. Scrivner, and Mr. Maggard are all current members of the Kern County Board of Supervisors, representing Districts 1, 2, and 3, respectively. Mr. McQuiston is a former District 1 Supervisor, and Mr. Watson is a former District 4 Supervisor. Mr. Christensen, Ms. Salas, Ms. Hitchcock, and Ms. Rhea are all Kern County employees. Mr. Christensen is currently the Chief Deputy County Administrative Officer, while Ms. Salas works for the Migrant Education Program with the Kern County Superintendent of Schools. Ms. Hitchcock is employed with the Employers' Training Resource Department, and Ms. Rhea works with the Elections Division.

Over the course of the eleven-day trial, the court heard from the roughly two dozen witnesses listed above and admitted over 150 exhibits. The parties submitted post-trial briefs on January 8, 2018. (Doc. Nos. 185, 186.) The court has given full consideration to all the evidence before it. However, the court will not address every witness or every piece of evidence below because resolution of the issues presented in this case simply does not require it. Having considered the testimonial evidence and exhibits, the briefs of the parties, and the applicable law, the court sets forth the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

LEGAL FRAMEWORK

Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose of eliminating racial discrimination in voting. Chisom v. Roemer , 501 U.S. 380, 403, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (citing South Carolina v. Katzenbach , 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) ); Farrakhan v. Gregoire , 623 F.3d 990, 995 (9th Cir. 2010) (Thomas, J., concurring). Section 2 of the Voting Rights Act of 1965 was enacted "to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall 'be denied or abridged...on account of race, color, or previous condition of servitude.' " Voinovich v. Quilter , 507 U.S. 146, 152, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) ; see also Chisom , 501 U.S. at 404, 111 S.Ct. 2354 (recognizing that Congress's express objective in amending § 2 was to "broaden the protection afforded by the Voting Rights Act"). Section 2 prohibits states or their political subdivisions from enacting voting standards, practices, and procedures "which result[ ] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 52 U.S.C. § 10301(a). A violation of § 2 is established if, "based on the totality of circumstances," the challenged electoral process is "not equally open to participation by members of a [racial minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b).³ "The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and [majority] voters to elect their preferred representatives." Thornburg v. Gingles , 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ; see also Allen v. State Bd. of Elections , 393 U.S. 544, 566–67, 89 S.Ct. 817, 22 L.Ed.2d 1 (holding the language "voting qualifications or prerequisite to voting, or standard, practice, or procedure" was employed in § 2 in order to be "all-inclusive of any kind of practice" that might be used to deny citizens the right to vote).

Following Congressional enactment of § 2, the Supreme Court articulated a two-step inquiry for analyzing vote dilution claims. First, a minority group of voters challenging a particular election system must demonstrate three prerequisites: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the majority group votes sufficiently as a bloc to enable it, in the absence of special circumstances, "usually to defeat the minority's preferred candidate." Gingles , 478 U.S. at 50–51, 106 S.Ct. 2752 ; accord Cooper v. Harris , ––– U.S. ––––, 137 S.Ct. 1455, 1470, 197 L.Ed.2d 837 (2017).

Where these threshold conditions are met, the court must then determine whether, "based on the totality of circumstances," the challenged electoral process impermissibly impairs the minority group's ability to elect representatives of its choice. Gingles , 478 U.S. at 44–45, 106 S.Ct. 2752 ; see also Old Person v. Cooney , 230 F.3d 1113, 1120 (9th Cir. 2000) [hereinafter Old Person I ]; Ruiz v. City of Santa Maria , 160 F.3d 543, 550 (9th Cir. 1998). In assessing the totality of circumstances, the Supreme Court in Gingles identified several factors relevant to determining whether a § 2 violation has been established. These so-called "Senate factors," developed by the Senate Judiciary Committee, are as follows:

(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise participate in the democratic process;

(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;

(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

(5) the extent to which

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