The California Voting Rights Act (CRVA) is still under legal attack. At the end of August, FairVote filed an amicus curiae, or “friend of the court,” brief in support of the CVRA, in which we urged that court to affirm the decision of the District Court for the Southern District of California in Higginson v. Becerra. Because of FairVote’s expertise in alternative remedies in similar vote-dilution cases, we can offer the court important context about alternative voting plans allowed under the CVRA.
In 2017, Don Higginson, the former mayor of Poway, CA, challenged the law by claiming the CVRA requires local governments to adopt district elections. He claimed that the districts adopted by the city of Poway “are the product of racial gerrymandering” and, therefore, constitute a violation of his Fourteenth Amendment equal protection rights. While lower courts dismissed the case on procedural grounds, Mr. Higginson has again appealed to the United States Court of Appeals for the Ninth Circuit.
As FairVote wrote last year, the California Voting Rights Act,aimed at improving the representation of the State’s diverse population in local government, was groundbreaking legislation. Importantly, the CVRA lessened the burden for minority groups to challenge the local governments that elect members at-large, which dilutes the power of minority communities. This system, where a majority population that votes together will win every seat, is also known as “block voting.”
While the response by some local governments to a CVRA challenge is to abandon their at-large elections and move to single member districts, the CVRA does not require local governments to adopt any particular solution to remedy a vote dilution challenge. As FairVote argues in the brief, local governments can also cure their vote dilution by keeping an at-large election and switching to a fairer voting method, such as cumulative-voting, multi-winner RCV, or limited voting.
Indeed, the text of the CVRA notes that courts can implement “appropriate remedies, including the imposition of district-based elections, that are tailored to remedy the violation.” This means that district-based elections is not the only possible remedy. This understanding is backed up by the legislative history of the CVRA as well as multiple California court decisions interpreting the text.
Finally, FairVote argues the appellants are incorrect that the CVRA violates the Equal Protection Clause. While previous federal Voting Rights Act litigation found placing people into districts based entirely on racial factors is unconstitutional, the Supreme Court has not so broadly conceived of racial classification to include the choice of a voting system. The alternative voting schemes allowed under the CVRA allow municipalities to remedy vote dilution without considering race at all.
Here's the full brief.