Shenkman clients Sanchez, Noonan sue city, say districts lines violate election code

| November 14, 2018 | 2 Comments

Two Martinez residents, represented by the same Malibu attorney firm that threatened to sue the city if it didn’t abandon at-large elections, have filed a suit claiming the Council-adopted districts violate the election code.

Plaintiffs Felix Sanchez and Nancy Noonan also accuse 100 unnamed defendants in the suit, which says those individuals have violated the election code, failed to prevent Martinez from violating the code or  are otherwise are responsible for the situation.

They are represented by Kevin Shenkman, of Shenkman and Hughes of Malibu, the attorney who instigated the city’s switch to by-district voting for its four Council seats by accusing the city of violating the California Voting Rights Act (CVRA) and threatening to sue if at-large voting wasn’t abandoned.

The CVRA discourages but does not outright ban at-large elections, acknowledging that at times, by-district elections also can dilute minority votes.

In the letter he sent last year, Shenkman accused the city of diluting the impact of Latino residents through at-large elections and said Martinez’s system led to “racially polarized” voting. He wrote a similar letter to the Martinez Unified School District.

Both the Council and school district vehemently denied Shenkman’s accusations, which also said Martinez officials had exhibited racist attitudes.

But Shenkman, who has sent similar letters throughout the state, has defeated every challenge to his accusations. Settlements have resulted in costly fines, some reaching several millions of dollars.

As a result, both the Council and the school district Board of Education agreed to draw voting area maps and adopt them in 90 days, the period of protection from lawsuits offered by the state.

“While that decision is commendable, the process of drawing Council districts went off the rails, and the districts that were ultimately selected are contrary to the law,” according to the lawsuit written Oct. 31 and filed Nov. 2, just days before the Nov. 6 general election.

Through their attorney, Sanchez and Noonan’s suit said Martinez has violated Section 21601 of the California Elections Code. Asked for further comment on the matter, Sanchez declined and referred questions to Shenkman. Repeated attempts to reach Shenkman and Hughes were unsuccessful.

Both residents typically attend Council meetings. Sitting in the front row, Sanchez publicly streams the proceedings of most of the meetings. He also is an independent contractor delivering Martinez News-Gazette newspapers.

The pair’s suit, filed as a civil rights complaint, said the city’s districts map “reflects its impermissible predominant consideration of incumbent residence.”

As a result, the suit said, the districts aren’t compact. Instead, they stretch the length of the city; fail to respect communities of interest and divide distinct communities into multiple districts; and “cracks” the Latino family by dividing Latino voters nearly equally among each of the four districts which the suit said is a method of diluting votes of a minority group.

During a December 20, 2017 Martinez City Council meeting Sanchez stated during public comment that he once was asked by a news crew where Martinez’s ethnic neighborhoods are, and he told the crew minorities are spread out throughout the city. “We’re diverse. I love that,” he said.

His observation echoed statements from a demographer that even though Hispanics and Latinos are the city’s largest minority, there is no way to draw the voting map that would give that protected group a majority, or even significant vote, in a district.

The suit said Sanchez and Noonan are asking the Contra Costa County Superior Court to rule that the city’s districts map violates the Election Code Section 21601 and to issue an injunctions that would prevent the city from further imposing or applying that map.

In addition, they are asking the court to require a “legal and appropriate district map to be employed in elections for the City Council….” They also want an award attorney fees, costs, litigation expenses and prejudgment interest.

Shenkman’s filing said in April 2018 Sanchez and Noonan wrote the city a five-page letter outlining how the adopted district boundaries are inappropriate because their purpose was protecting the incumbents and that the districts are “bizarrely-shaped, not compact and appear to be non-contiguous (or only contiguous in the sense that the portions of a district are connected by only an unpopulated highway); and, the districts split up the Latino community in a way that replicates Martinez’s prior dilutive at-large system.”

The city responded in a brief letter that said the district maps comply with the California Voting Rights Act, the suit said. Shenkman’s suit accused an unnamed Councilmember of calling the districts “a joke.”

The suit said the 100 unnamed defendants “were the agent, partner, predecessor in interest, successor in interest and/or employee of one or more of the other Defendants….”

The document describes Martinez as having about 35,942 residents, of which 15 percent are Hispanic or Latino.

It said the plaintiffs wrote Martinez Oct. 18, 2017, to say the at-large elections violated the CVRA. However, the letters sent then to the city and the school district listed no Martinez individuals or groups as the legal firm’s client.

Instead, Shenkman identified the Southwest Voter Registration Education Project, a San Antonio, Texas, organization with an office in Los Angeles, as the law firm’s client and the client that was accusing the city and school district of violating the CVRA.

The Council declared Dec. 6, 2017, it intended to switch to by-district voting and hired National Demographics Corporation to draft district maps. During that time, the Council conducted six public hearings. Two were required to hear residents’ comments prior to the drawing of maps, as required by law. The rest took place to take more comments and modify the districts.

The suit quoted Councilmember Mark Ross as saying the Council would likely vote for maps that kept incumbents in place.

More formally, the Council sought to have districts that stretched from the Carquinez Strait to south of California Highway 4. Because voters had chosen in two earlier elections to institute an independently-elected mayor, the Council chose four districts, one for each of the Council seats.

The Council also sought to avoid head-to-head contests between incumbents, the suit said.

The lawsuit said that is contrary to a policy established in 2008 by California voters in Proposition 11 which says, “The place of residence of any incumbent or political candidate shall not be considered in the creation of a map. Districts shall not be drawn for the purpose of favoring or discriminating against an incumbent, political candidate or political party.”

In addition, the suit said the boundaries aren’t compact, but are narrow and stretch the length of the city. Those districts fail to respect communities of interest and divide them into multiple districts, put Latino voters into each of the four districts that dilutes their vote, and frustrates the purpose of the CVRA, the suit said.

In addition, it said the districts “caused massive confusion and inconvenience among voters,” adding that the Contra Costa County Elections Office had recommended the districts follow existing voting precincts to avoid significant administrative difficulties in the Nov. 6 election.

Saying the city failed to do that, the suit said the county Registrar of Voters Joe Canciamilla required thousands of voters to vote by mail, which the suit said serves to depress voter turnout, especially among less wealthy or Latino voters.

Shenkman and his clients accuse the city of violating Election Code Section 21601, which states that after every federal census, the Council shall adjust its boundaries of any districts to make sure the population of each of the divisions is as equal as possible.

The code says the Council may – but not “must” – consider topography, geography, cohesiveness, contiguity, integrity and compactness of territory and community of interests of the Council districts.

When the Council adopted its districts Feb. 28, it patterned them after South Pasadena’s north-south vertical pattern that were described by consultants as creating “a good mixture” of commercial, residential and industrial areas.

That approach appealed to Councilmember Noralea Gipner, who feared districts might create “little kingdoms fighting with each other.” She wrote a statement saying she preferred “inclusive and diversified” districts.

Vice Mayor Lara DeLaney agreed, and cited one resident, Donna Allen, who said districts were chopping Martinez into fiefdoms, and Councilmember Debbie McKillop said they were “breaking up our community, and encouraged the Council to choose districts that contain a cross section and multiple parts of the city on both sides of Highway 4.

In the first of a series of public hearings before the final district map designs were adopted, Sean Welch, of Nielsen Merksamer Parrinello Gross and Leoni, a San Rafael political and government law, advocacy and litigation firm, and Shalice Tilton, of National Demographics Corporation, said Martinez’s Hispanic-Latino population is too small and all of its minorities are too spread out for Martinez to have a “minority-majority” district.

Welch also advised the Council and those at the hearing that court decisions have encouraged preventing head-to-head contests between incumbents, because those leaders were put in office by the voting public. Some political considerations are permitted, he explained.

The CVRA itself does not forbid at-large elections, although it strongly favors by-district voting except when such systems would dilute minority voting impacts, Welch said.

He said the state code requires each of the districts to have nearly identical populations, with a total deviation of less than 10 percent.

At the time of the hearings, Tilton said Martinez had nearly 29,000 residents of voting age; of them, more than 21,000 were registered voters. Of those, 80 percent are white, 11 percent are Latino, 3 percent are Asian, 3 percent are African-American and 2 percent are Filipino.

Besides the state code, the Council had to consider the federal Voting Rights Act and other, Welch told the panel.

Neither California’s nor the federal voting rights acts allows dilution of racial and language minority voting rights and districts can’t dilute minorities by splitting concentrated communities into separate districts. But Welch said that’s not a problem in Martinez, since minority voters are not concentrated in one area but are spread throughout the city. Topography can be taken into consideration.

In addition, the United States Constitution’s 14th Amendment restricts using race as the predominant criterion in drawing districts, Welch told the Council, nor can districts look “peculiar.”

The Martinez City Council is meeting at 6 p.m. today in a closed session to discuss the lawsuit.

The suit isn’t expected to be settled soon. The Superior Court has scheduled a variety of procedures on the complaint through next year, including a case management conference at 8:30 a.m. March 20, 2019.

Additional reporting by Rick Jones

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  1. Chris Kapsalis says:

    Either way this will cost the city a lot, win or lose. And all on an issue that was never an issue. You cannot draw a map to consolidate the Latino populations or vote in Martinez. There must be some other way to unite the Latino community in Martinez because they are to spread out to use districts. This is a money grab pure simple. We are a very diverse community in all parts of our city. Which even the plaintiff admitted. Throw it out or back out of this asap imo, it is sham,.

  2. Franci Lucero says:

    I did not realize Felix was behind this. I thought he was filming the meetings with good intentions. Latinos are spread all over town. THERE IS NO SPECIFIC AREA! My husband is Latino and I am white. This is waisting our city councils time , energy and Money. I was the first papergirl in Martinez and it is amazing what paperboys can do these days.

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