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Ninth Circuit Clears Mayor's Case Alleging Race-Based Voting Districts

By William Vogeler, Esq. on June 26, 2018 | Last updated on March 21, 2019

While the U.S. Supreme Court weighed racial gerrymandering in Texas, a California city was caught up in a similar legal fight over voting districts.

A former mayor sued, claiming the City of Poway racially gerrymandered his voting district. It is unusual because the politician is white in a predominantly white town.

A federal judge dismissed the case, but now an appeals court has reversed in Higginson v. Becerra. It's not about minorities; it's about equal protection.

Voting Rights Act

Don Higginson, an attorney and local politician, says the city violated the state's Voting Rights Act when it changed its at-large voting to by-district voting. He said the new districts separate "citizens into different voting districts on the basis of race."

The case actually puts the Voting Rights Act on trial because, Higginson argues, the Act required cities to abandon voting systems if they polarized racial voting. In a hearing before U.S. Ninth Circuit Court of Appeals, California Deputy Attorney General Amie Medley claimed that Higginson was not injured by the change to by-district voting districts.

"He's a voter and if he used to get four votes and now only gets one vote, how is that not an injury in fact?" asked Judge Susan Graber.

In its ruling, the Ninth Circuit said Higginson showed that he lives in a racially gerrymandered district.

"Concrete Injury"

Going further than the U.S. Supreme Court in its recent decision on racial gerrymandering, the appeals court said Higginson had a case. He had injury enough to sue because there were few candidates by-district voting than in the at-large voting.

"This alleged injury is concrete and particularized, directly traceable to the city's adoption of Map 133, and potentially redressable by an injunction requiring the city to return to its former system of at-large elections," the court said in an unpublished decision.

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