In An Equal Place: Lawyers in the Struggle for Los Angeles (2021, 508), Scott Cummings presents a theory of the law as “a pragmatic tool of social movement organizations, activists, lawyers” and others for the creation of “a new legal framework.” This essay applies his theories beyond the workplace context of his book to political access and voting rights in California. Late in the twentieth century, civil rights attorneys focused their efforts on the growing Latino population and on strategies to achieve political power commensurate with its numbers. Twenty years later, we are seeing the fruits of their labor, as civil rights attorneys use state law to ensure that Latinos in local communities can elect representatives who reflect their priorities. Cummings’ observations hold as true for political access as they do for workplace democracy:
That lawyers have been at the center of this movement underscores not only that law has come to define the fundamental landscape of contemporary political struggle, but also that the legal profession can still serve as a wellspring for social change in a moment in which change is so desperately needed (508).
The examples of voting rights legal strategies designed to create local political power throughout California I examine in this essay come from my former practice with the Mexican American Legal Defense and Educational Fund (MALDEF), which was a major actor in Cummings’ chapter on day laborers. While MALDEF has historically teamed with organizing groups, organizations, movement builders, and grassroots communities in taking its cases, it does not do so with all its cases. Sometimes, MALDEF attorneys develop litigation strategies based on their years of experience working in the Latino community. For example, MALDEF is at the forefront of redistricting litigation aimed at protecting the right of Latinos to elect candidates of their choice in cases throughout the country. Building upon its expertise with the federal Voting Rights Act of 1965 (VRA) and the cases interpreting its requirements, MALDEF attorneys worked for the passage of the California Voting Rights Act (CVRA). The 2001 passage of the CVRA spawned the transformation of electoral systems from at-large to single-member districts. The next stage of their change strategy involves monitoring the newly districted jurisdictions to ensure their redistricting efforts comply with the federal VRA.
I explore the opportunities and challenges that arise from some of these voting rights victories by focusing on what Cummings terms “legal endowment” (458) or the human capital available to communities, geographic or otherwise. Just as with the workers’ rights strategies in Cummings’ book, the voting rights strategies were “powered by a new generation of lawyers of color, who sought to mobilize their professional capital to challenge racialized systems of … subordination, while maintaining more horizontal relations with the communities they served—and of which they viewed themselves a part” (458). As Cummings suggests existed with the labor strategies, “this identification with community, though complicated by class and ethnicity, permitted a type of solidary often absent from first-wave public interest lawyering” (461). Drawing on Cummings’ framework for analyzing the achievements of economic justice movements (461), I explore the impact of MALDEF’s voting rights strategies on three levels: with respect to law on the books, law in action, and law as a lever for redistributing power. On a theoretical level, Cummings’ perspective on the collaborations between lawyers and local groups as a story of “the use of law to bend government policy in progressive directions” in order to “codify new meaning of equality under law” (478) allows us to view legal strategies to increase electoral power for Latinos as an extension of the economic democracy project in the campaigns Cummings studies. The lawyers who set the stage for changes in electoral systems at the local level “act as architects of equality: using technical skills to translate social movement claims into legal regimes that empower marginalized communities” (478).
I. Legal strategies setting the stage for long-term victories: MALDEF’s strategy to counter systemic bias in California’s election systems
MALDEF has been involved in redistricting litigation in California for several decades now. Its former leader, Joaquin Avila, was an architect of the CVRA of 2001 (Bender, Reference Bender2019, 2–3; Avila Reference Ávila2000, Reference Ávila2002; Fraga, Reference Fraga2019), which expanded the VRA to target at-large districting schemes at the local level. Based on its experience with the federal VRA, MALDEF and other supporters of the CVRA ensured that the California version of voting rights legislation would make it easier for plaintiffs to prove that at-large voting schemes diluted the votes of minority voters. Unlike the VRA, the CVRA does not require a showing that a protected class is compact enough to merit a district, or a showing that the majority has prevented the minority from electing a candidate of choice. Under the CVRA, a plaintiff need only show that the majority votes differently from the minority and, as a result, the minority cannot elect candidates of their choice.
In the past decade, more than 200 jurisdictions—cities, counties, school districts, library districts, and other local jurisdictions—have transformed from at-large districts to single-member districts as a result of demand letters or litigation under the CVRA.Footnote 1 An assessment of the effects of the CVRA found that the shift from at-large to single-member districts has resulted in a ten to twelve percent increase in minority representation (Collingwood and Long Reference Collingwood and Long2019, 734). These transformations have occurred after lawyers, CVRA mandate in hand, have threatened or commenced litigation. While some of these have involved collaboration or cooperation with local, state, or national organizations, such collaboration is not always present.
The CVRA and its amendments have increased opportunities for minorities, including Latinos, to elect candidates of their choice at the local level. The local transformation of electoral systems is important because, as Joaquin Ávila noted, if voters are disenfranchised through indirect means like redistricting, “after a while, people begin feeling that their votes don’t matter, and people will ‘choose’ not to vote. People will ‘choose’ not to vote because they become disheartened, because they feel that their rights are not respected, that their efforts to participate in the political process will be thwarted, as they have been over and over, with the courts standing by, letting it happen and making excuses for why they do not step in” (Chang Reference Chang2019, 98–99). Cummings understands this as well. He notes, “In this fractured environment, where the power of the majority clashes with that of the ‘one percent,’ the question of who controls the levers of local government power, and to what ends those levers can be put to address the crosscurrents of development and displacement, is at the forefront of the new struggle for the city” (500).
The strategy for Ávila and MALDEF was to ensure that electoral change could transform along with the demographic changes in the state. While MALDEF effected some change through the federal VRA, it could not achieve such a sea change at the state level without the CVRA. Before the CVRA, 28 cities conducted by-district elections. After the CVRA, almost 300 local jurisdictions have made the change to by-district elections (League of California Cities 2018, 1). Through this legislation, MALDEF set the stage for future movement building. Presumably, this change in political representation will ultimately transform policies that affect Latinos at the local level. This was the goal for architects of the plan, including Joaquin Ávila. In a 2003 UCLA voting rights study, he declared:
A society’s interests are not furthered when a substantial number of its inhabitants are excluded from the body politic and have no meaningful way to petition for a redress of grievances through the electoral process. Such a continued exclusion from political participation is detrimental to achieving a more cohesive society. The ultimate product of such exclusion is a political apartheid (Avila Reference Ávila2003, 1–2).
Ávila’s proposed strategy for changing the political landscape included litigation, legislative proposals, and the initiative process. The strategic goal was to achieve voting rights at the local level for noncitizens, the vast majority of whom are Latinos. The CVRA helps address the goal by increasing the political participation of Latino citizens who can vote. The UCLA study identified over eighty jurisdictions with Latino populations greater than 25%. Of those, more than ten jurisdictions had a majority Latino population. Avila’s vision included targeting the most disenfranchised and disaffected populations to create opportunities for political participation once Latino candidates of choice were elected. Success would be fleeting, however, if it were not protected and if it were not built upon. MALDEF has remained involved in protecting the CVRA from constitutional challenges and in building upon local successes.
1. Defending the law against constitutional challenges
In 2016, the CVRA was amended to give local jurisdictions a safe harbor time period during which they could switch from at-large to district election systems. If local jurisdictions did so within 45 days of a demand letter challenging an at-large system, the jurisdiction would not be held in violation of the law.Footnote 2 Before this amendment went into effect, 88% of California cities still had at-large election systems, and fewer than 100 jurisdictions had converted (Glasgow Reference Glasgow2021). After this amendment went into effect, over 400 jurisdictions have converted (Smith Reference Smith2020).
Soon after the CVRA’s amendment, the City of Poway switched from at-large to district elections for city council in response to a demand letter.Footnote 3 In response, the conservative Project on Fair Representation funded a lawsuit on behalf of the former mayor of Poway alleging the CVRA was unlawful. In Higginson v. Becerra, et al., Footnote 4 the former mayor claimed that the state enacted the CVRA solely to maximize minority voting strength, and that its application in Poway constituted a racial gerrymander in violation of the Equal Protection Clause. Higginson’s lawsuit amounted to a reverse discrimination claim that the city’s transition to council districts was based on race. The argument ignored the race-based effects of at-large election systems, and the purpose of the CVRA to ameliorate those effects.
The district court dismissed Higginson’s claim, and he appealed his way to the Supreme Court. MALDEF and Asians Advancing Justice-ALC intervened at the district and appellate levels on behalf of minority residents whose interests, and their access to political participation, would not otherwise be protected by the city or its officials. The Ninth Circuit held that the state had adopted measures designed “to eliminate racial disparities through race-neutral means.”Footnote 5 Because Higginson failed to allege that Poway had classified districts based on race when it dismantled its at-large system, his claim was properly dismissed. The Supreme Court refused to grant certiorari.Footnote 6
In another case, the CVRA’s constitutionality was challenged on appeal. In Pico Neighborhood Association v. City of Santa Monica, the minority plaintiffs claimed that the city enacted an at-large election system intentionally to dilute Latino voting power and to prevent Latinos from electing city council candidates of their choice. The plaintiffs successfully demonstrated racially polarized voting, as required under the CVRA. They also showed that Latino-preferred candidates consistently lost elections. The trial court ruled in favor of the Latino plaintiffs, but the Court of Appeals reversed the decision, noting that because Latinos did not comprise a large-enough percentage of the population to elect a candidate even if a district election system were enacted, plaintiffs failed to prove Latino vote dilution.Footnote 7 The CVRA does not, on its face, require that plaintiffs show they had sufficient numbers to comprise a majority-minority district as part of their claim.Footnote 8 On appeal, the California Supreme Court agreed with the plaintiffs that the protected class need not show they could constitute a majority of a hypothetical single-member district to prevail.Footnote 9
These cases demonstrate that the CVRA continues to be highly contested, and its defense continues to take up legal resources. The virtue of the legal strategy is that it protects access to the political process regardless of the organizing resources available in any one community. Because constituents and legislators understand the impact and importance of greater access to the political process, moreover, litigation can help achieve the change and protect it at the same time.
The challenge, of course –and one which Professor Cummings posits leads to ultimate success if overcome—is getting the litigation and the movement-building strategies to work in tandem. We need to sustain change through litigation and build electoral power at the same time. Even when MALDEF succeeded and won its CVRA challenges in court or through settlement, local jurisdictions failed to draw Latino-majority districts that could elect Latino candidates of choice. For example, in Placentia, a municipality in Orange County, the city council changed its at-large election system to a single-member district system after MALDEF demanded the change in 2015.Footnote 10 In the twenty years before the change, there had only been one Latino on the city council, despite the Latino population numbering 36% of the total population. MALDEF reached a settlement with the city, and one majority-Latino citizen voting age district was created during the transformation. After the first district election was held in 2018, no Latinos were elected despite the opportunity for such an outcome in the new Latino-majority district. MALDEF found that the city breached the settlement agreement by creating a district that intentionally split up Latino neighborhoods and communities of interest, ultimately depriving Latinos of a meaningful opportunity to elect candidates of their choice. MALDEF sued, forcing the city to create a new map in 2019. As yet, no Latinos have been elected to any of the districts. This example demonstrates the need for social movement work to occur at the same time as the lawsuits, to ensure that the litigation victory is in service of political access for the Latino community.
In other instances, local jurisdictions failed to draw districts that included a Latino citizen voting age population after conversion from at-large to district election systems. For example, in Eastvale, a municipality in Riverside County, a conversion took place soon after MALDEF demanded it in 2016.Footnote 11 In drawing the initial district lines, however, city officials failed to create a Latino-majority district, even though the Latino citizen voting age population (LCVAP) at the time numbered 36% of the population. The Latino-preferred candidate lost in the first post-conversion election, and the city has yet to elect a Latino to city council. Latinos now comprise 39.5 % of the municipality’s population.Footnote 12 The city council is in the process of redrawing the district lines after the 2020 Census. This process provides an opportunity for local residents to mobilize to ensure that the City creates a Latino-majority district in this round of redistricting.
In each of these scenarios, the long-term outcome continues to depend on local mobilization. Litigation alone provides an opportunity, but social and political organization must be as successful as the litigation strategy to sustain change.
2. Opportunities to protect CVRA successes by building upon them
The 2020 redistricting cycle is the first in which many of the local jurisdictions that converted to districts redrew district lines. This process has provided an opportunity for local social movement or grassroots activity, as well as an opportunity for continued legal monitoring of the processes that local jurisdictions undertake. Even in jurisdictions that converted to district elections under the CVRA, MALDEF and its allies will continue to monitor redistricting efforts and challenge those that dilute minority votes under the federal VRA.Footnote 13 This was the case in 2017 when MALDEF sued Kern County. In Luna v. Kern County, MALDEF successfully challenged under Section 2 of the Voting Rights Act of 1965 the use of racially gerrymandered district boundaries for the election of the county’s Board of Supervisors. The result was the creation of an additional Latino majority district on the County’s Board of Supervisors.
MALDEF’s strategy includes VRA redistricting challenges to the local jurisdictions, such as Eastvale, that converted to district election systems in the past decade. MALDEF recently sent the City of Eastvale a demand letter requesting that it create a LCVAP majority district as required by the federal VRA.Footnote 14 The hundreds of jurisdictions that have converted from at-large to district systems are all going through the redistricting process. This decennial event provides an opportunity for social movements and lawyers to work together to achieve political access.
Conclusion
As Cummings notes, lawyers and social movement actors play different, yet complementary roles. This is especially true in the voting rights arena. Professor Cummings’ theory about the role of lawyers in social movement campaigns credits the importance of litigation in arenas such as voting rights:
[T]his wider perspective, while providing an important corrective to legal liberalism’s overemphasis on litigation, simultaneously draws theoretical attention to the multifaceted ways in which litigation does continue to play central—though often nontraditional—roles in reform campaigns: offensively as one piece of larger integrated campaigns to win policy and defensively, as an important tool to resist opponents’ legal challenges to undo those victories (485).
The examples in this essay show the limits of a litigation-heavy strategy. But they also demonstrate that working in tandem with organizing campaigns can lead to successes similar to those achieved in the L.A. labor and employment arena. As Cummings notes, “[u]ltimately social movements mobilize law and politics to achieve greater power: a more equal place in the crucial decision-making structures of governance” (472). This is as true for equality in voting rights as it is in workplace democracy.
