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Saturday, Mar 10 2012 06:00 AM

White-dominated boards face legal threats over racial makeup

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BY WILL EVANS California Watch

Local governments with white-majority elected boards throughout California are increasingly facing threats of lawsuits for not reflecting the demographics of their constituents.

While several Kern County school districts are changing their election systems to avoid liability, cities large and small are also vulnerable under the California Voting Rights Act.

Lawyers have taken a special interest in the Central Valley, having sued the city of Tulare and threatened Visalia with litigation -- both heavily Latino communities with all-white city councils.

"We're seeing the fastest change in how California organizes local government since the Progressives of the early 20th century," said Douglas Johnson of the Rose Institute of State and Local Government at Claremont McKenna College, a critic of the law. "The law is extremely expansive. Every local government in California should be looking into this."

Particularly striking are the 14 cities in California where all-white councils preside over communities where either Latinos or Asians make up the majority of residents. They include Tulare and Porterville, while several others are in the Los Angeles area.

Another 20 cities have Latino majorities and only one minority on city council, including Shafter, where the population is 80 percent Latino.

Such cities can make especially attractive targets for civil rights lawyers, who see the stark disparities as evidence of a systemic problem, though no group has threatened Shafter with a lawsuit, according to City Manager John Guinn.

"These are the cities that should recognize that they are low-hanging fruit for groups who might want to bring lawsuits," said Paul Mitchell of Redistricting Partners, a Sacramento-based consulting firm that works with local governments to determine their vulnerability under the law.

The far-reaching Voting Rights Act prohibits local governments from holding at-large elections -- in which the entire community votes for a slate of candidates -- if that system weakens the ability of minorities to elect candidates of their choice.

An elected board can be found in violation if voting statistics show the community polarized along racial lines. That happens, for example, when Latinos vote more than their white neighbors for Latino candidates.

Elected boards that violate the act can be forced to divide their communities with district elections, in which different areas elect their own representatives. That's how Bakersfield City Council elections are run. That way, districts with a high concentration of minorities could more easily elect one of their own.

A series of court victories and settlements has created a ripple effect in which many school districts are switching to district elections voluntarily rather than face expensive lawsuits.

Since 2009, 69 school boards applied with the state Board of Education to make the switch, including five from Kern County this year: Bakersfield City, Kern High, Panama-Buena Vista Union Elementary, Richland Union Elementary and Greenfield Union.

At the same time, lawyers have ratcheted up their legal threats in the last two years, shooting off letters to cities such as Visalia, Santa Clara, West Covina and Whittier. The Visalia City Council decided Monday to put a change to district elections on the November ballot.

The 2010 suit against Tulare argued that, even though the city then had a Latino councilman, he wasn't the "candidate of choice of Latino voters." Another councilman, David Macedo, said in an interview that he identifies as Hispanic because of his Portuguese ancestry, but doesn't consider himself Latino.

Tulare settled for $225,000, which went to the plaintiff's lawyers, and will hold a June vote on switching to district elections. Macedo said he would encourage voters to approve district elections because, given the law, "one way or another, that's the way it's headed."

Guinn said Shafter is a very different city. It's much smaller and has a much larger minority population, so carving it up into wards wouldn't produce a different result at the polls, he argued.

He also said while there are political factions in every community including Shafter -- left, right, middle -- he believes the people of Shafter vote their conscience, regardless of race.

"When you are 80 percent Hispanic, the Hispanic population certainly has the ability to influence any at-large election," Guinn said.

The act was drafted by Joaquin Avila, a Seattle-based voting rights attorney, and Robert Rubin, who until recently was legal director of the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. The duo has gone on to sue school districts and cities, racking up millions of dollars and sparking accusations they're in it for the money.

Rubin, now in private practice, said the money from his share of legal settlements went to the nonprofit civil rights organization where he worked. He said governments saddled with huge legal costs have only themselves to blame for not following the law.

"We intend to enforce this until it doesn't need enforcement anymore," Rubin said.

California Watch identified the 34 cities with data from Redistricting Partners and another consulting group, GrassrootsLab. But the cities represent one end of a spectrum. Numerous other communities, with smaller minority populations or more diversity on the city council, also could be subject to a suit under the California Voting Rights Act, which was passed in 2002 and signed by Gov. Gray Davis.

Cities have blamed low turnout among minorities for their lack of representation.

"I think you will agree with me that if people do not vote, that speaks volumes about their desire to elect a particular candidate," an attorney for the city of Visalia wrote to Rubin, of the lawyers committee.

Rubin dismissed the argument, blaming a history of discrimination for discouraging political participation.

A law so rooted in race inevitably leads to thorny questions about racial politics and the murky, subjective cauldron of ethnic identity. Should the race of a city councilmember even matter? And, in a state where the lines are increasingly blurred, who can determine a councilmember's race other than the council member?

In a case against the city of Compton, for example, lawyers representing two Latina residents argued that there are no Latinos on the city council. Compton City Councilwoman Janna Zurita, on the other hand, pointed to her election as evidence that Latinos are represented.

Zurita owes her Hispanic last name to a grandmother from Spain, whom she never met. Zurita considers her mother black and said her father "wants to be black" even though he "looks Latino."

Zurita sometimes jokes with her sister about their racial roots.

"She always tells me I look just like a Mexican: flat booty, straight hair. You know, just all kind of -- how Mexicans used to look. You know, now they have big booties," Zurita said in a deposition in November. "You know, little jokes about it."

While Zurita takes a sometimes-playful approach to her racial identity, it became a serious issue in the lawsuit. In January, a judge ruled that a trial would be necessary to figure out whether Zurita could be considered Latina and whether that means Latinos have a voice on the council. The city settled the suit late last month.

Compton agreed to let voters decide whether to change to district elections. If voters shoot it down on the June ballot, the city will put it to another vote in November. Compton also agreed to pay the opposing attorneys' fees.

AT-LARGE ELECTIONS CHALLENGED

California's law is grounded in the idea that minorities sometimes vote differently from the rest of the population and that at-large elections, where the majority rules, can unfairly dilute their influence. The U.S. Supreme Court has upheld that underlying notion in cases interpreting the federal Voting Rights Act.

Indeed, in many parts of the state, Californians do tend to vote for candidates of their same race, according to research by Matt Barreto, who served as an independent expert to the state redistricting commission. Barreto also consults for lawyers suing under the law.

The California law makes it much easier to challenge at-large elections than under the federal Voting Rights Act. Plus, the state law puts local governments at a disadvantage: If they lose a lawsuit, they have to pay the other side's attorney's fees, but not the other way around.

Labor unions and other groups also could use the law as a weapon in disputes with cities and school boards.

The first such case came in December, when the State Building & Construction Trades Council of California sued the city of Escondido, in San Diego County, alleging that at-large elections leave Latinos without fair representation. The union targeted Escondido because officials there have been trying to lower wages on public construction projects.

Some cities aren't giving in easily.

An attorney for the city of Whittier fired back with a letter to Avila saying it was not violating minorities' rights. She noted that many "prominent" Latinos had endorsed white council members.

Victor Lopez, who died in 2002, was the only Latino elected to the Whittier City Council and has a school auditorium named for him. His son, Doug, was later appointed to serve out another term. Others have run and lost, but Doug Lopez isn't troubled.

"If a Hispanic ran who was very competent and qualified, they'd run away with it," said Lopez, now a real estate developer in San Luis Obispo. "Do you need minority representation? I don't think so. You just need good representation."

POLITICAL PARTICIPATION

Some residents in Latino or Asian communities are immigrants who can't legally vote. Others lack a strong culture of voting, say some aspiring candidates.

Mayor Jerry Brittsan of Holtville, where 82 percent of the 5,939 residents are Hispanic, said Latinos "just refuse to participate." The city, in Imperial County, sits 10 miles north of Mexico.

"The Mexicans in this area -- this is a border town -- they just don't trust whites," Brittsan said. "They don't trust authority. The only people they do trust are the firemen."

Bianca Padilla Legaspi, who won a seat on the Holtville council in 2006, disagreed. Young and campaigning in two languages, she was an unusual candidate for Holtville, but "people really responded to it," she said. Latinos don't tend to run for office there, she said, because many have low income and education levels and don't feel qualified.

In some cities with all-white councils, minority candidates have won in past elections -- but not recently.

In Arcadia, for example, Asians served on the city council since 1994. Arcadia and neighboring cities in the San Gabriel Valley have an especially strong concentration of Asian residents.

In the 2010 council election, three Asians and three whites competed for three council seats. In the end, all three Asians lost, leaving the council all white.

Asians have to work harder to get elected in Arcadia, but it's not impossible, said John Wuo, who served two terms and is running again. Wuo said he would oppose a change to district elections.

"I think that's a bad way to do it, because you basically try to segregate," Wuo said. "If you divide into districts, then you have fighting among the districts."

Boosting minority representation isn't a guaranteed outcome of district elections.

After civil rights lawyers sued Modesto in 2004, the city ended up paying a $3 million settlement and changing to district elections. But the racial makeup of the council is the same as it was before the switch.

David Geer, who is white, thought he had no chance to win in Modesto's District 2, which he said was designed to elect a Latino. But Geer beat the Latino candidate and now believes the system worked to give a neglected neighborhood a voice.

"It's nice to have someone who represents an area that has been historically unrepresented," Geer said. "For decades, no one who served on the city council lived in District 2 because it's on the wrong side of the tracks."

California Watch, the state's largest investigative reporting team, is part of the independent, nonprofit Center for Investigative Reporting. For more, visit www.californiawatch.org. Evans can be reached at wevans@cironline.org.

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