City of Berkeley heads to court over redistricting lines

The city has filed a lawsuit to ask a judge to decide which lines to use during November's election. (Click to learn more.)
The city filed a lawsuit to ask a judge to decide which lines to use during November’s election. (Click the thumbnail to learn more.)

The city of Berkeley has filed a lawsuit against the Alameda County registrar of voters and the Berkeley city clerk to determine which district lines to use in the November 2014 election.

City officials say the lawsuit is necessary to determine district lines after a successful referendum drive by some Berkeley voters earlier this year halted the use of a new district map adopted by a 6-3 vote by the Berkeley City Council in December.

The city is required to redraw district lines every decade to rebalance the population across Berkeley’s eight council districts.

Three members of the council — Kriss Worthington (District 7), Jesse Arreguín (District 4) and Max Anderson (District 3) — have taken issue with the adopted map, primarily due to the boundaries of District 7. The district, as adopted, features a majority of student-aged voters, but detractors say it cuts out some of the most progressive members of the Cal community by failing to incorporate several blocks north and east of campus, which include co-op housing and other group living accommodations such as dorms and International House.


The primary aim behind the new boundaries for District 7 — which abuts the University of California campus — has been to increase the number of students in it. The map approved by council in December includes 86% student-aged voters. An alternative map, which gained vocal support after its submission by an intern in Worthington’s office months after the official proposal deadline had passed, includes 90%.

Each district must include approximately 14,073 residents. Based on the population figures provided in both maps, and the percentages above, the alternative map has approximately 668 more student-aged voters than the adopted map.

The city’s lawsuit, filed April 3, names county registrar Tim Dupuis and city clerk Mark Numainville as defendants, along with nine others who are listed as “real parties of interest”: council members Worthington, Arreguín and Anderson, as well as Stefan Elgstrand, Paul Kealoha Blake, Matthew Lewis, Stephanie Miyashiro, Phoebe Sorgen and Alejandro Soto-Vigil.

The firm representing the city — San Leandro-based Remcho, Johansen & Purcell — said in a letter that those nine individuals were included in the suit because they were listed among the organizers of the Berkeley Referendum Coalition, which has been fighting the district map adopted by the council in December.


According to the letter, dated March 28, the city clerk “intends to use the district lines adopted in 2002” in November’s election, while the city hopes a judge will rule to allow the map adopted in December to be used in that election “to provide certainty for candidates, voters, and the County Registrar of Voters, and to avoid the violations of the U.S. Constitution and the City Charter that would ensue from the use of the 2002 district lines.”

The city does not plan to seek attorneys’ fees or other costs from any of the individuals named, according to the letter.

City attorney Zach Cowan said in a March 24 memo to the mayor and City Council that Berkeley is taking a standard approach for this type of legal action.

“Election cases are often filed against city clerks and registrars of voters who have no particular stake in the outcome, but who must be named as respondents because they are the officials to whom any court orders will be directed,” he wrote. “The normal practice in such cases is to name the adverse parties — in this case the proponents or the person or persons they designate — as ‘real parties in interest’ or defendants, to ensure that the merits of the dispute are fully ventilated before the court. That is the case here.”

In the lawsuit, attorneys for the city argue that the city clerk is “in a bind” due to the referendum drive carried out by “a small minority of Berkeley voters.” The clerk cannot submit the new map to the county, due to the referendum, but the old map from 2002 has district populations that are out of balance and based on “obsolete” data. Under the 2002 plan, District 5, for example, includes about 12,700 people, while District 7 includes more than 16,600.


Chart: City of Berkeley
Chart: City of Berkeley

Due to the population discrepancies, according to the lawsuit, use of the 2002 map would violate the “one-person, one-vote” standard of the state and federal constitutions, as well as the city charter.

The lawsuit cites two state Supreme Court cases in which a referendum halted the use of an adopted redistricting plan; in both cases, the court ordered that the adopted plan be used for elections prior to a vote on the referendum.

Both Arreguín and Worthington have called the lawsuit “outrageous,” and have pushed for the adoption of the alternative map or some other compromise map instead. The two have characterized the lawsuit as “the city suing itself.”

At least one community member, George Beier, has been working on a compromise map, which he says has gained some support already from council members, but no consensus has been reached to date.

In addition to the referendum issue, four council seats will be up for grabs in November’s election: District 1 (Linda Maio), District 4 (Arreguín), District 7 (Worthington) and District 8 (Gordon Wozniak). Of those, only Wozniak has said he does not plan to run again.


Second lawsuit looms, council process violations alleged

To make matters more complex, a Sacramento-based law firm representing “several residents of the City of Berkeley” has raised alarms about two alleged violations by the Berkeley City Council related to its redistricting vote March 11.

Attorney Richard Miadich of Olson, Hagel & Fishburn said in an April 4 letter that council decisions to authorize the hire of outside attorneys to handle the redistricting matter, and to place the referendum on the November ballot, “were never publicly identified” in advance in city documents, and thus violated the Brown Act — which governs transparency in public meetings — and the city charter.

According to his letter, the referendum should have been placed on the June ballot in a special election according to what had been posted in the agenda. (The city said, in its lawsuit, that the county deadline for filing for a special election was March 7, before the March 11 meeting, hence the need to wait until November to put the referendum on the ballot.)

Miadich asked the council to “take corrective action to cure these violations of the law,” and said the firm will file a lawsuit if that does not happen.

But that’s not all. According to Arreguín aide Anthony Sanchez, the city was also remiss when it hired Remcho, Johansen & Purcell on Feb. 26, nearly two weeks before the council authorized that hire. According to that contract, the law firm was hired to “provide legal advice and representation regarding the redistricting ordinance,” specifically regarding litigation matters, for fees up to $30,000.

City spokesman Matthai Chakko said Tuesday that the city retained the law firm in February because it anticipated the possibility of the lawsuit, as well as the fast pace of the case, and wanted to be prepared. Chakko said he could not otherwise comment on the issue due to the pending litigation.

Tuesday, parties involved in the lawsuit appeared before Alameda County Superior Court Judge Evelio Grillo to determine the schedule for the case moving forward. Grillo has scheduled the next hearing for the case for April 29 at 1:30 p.m. in Department 31 at the U.S. Post Office Building at 201 13th St. in downtown Oakland. (The hearing time was updated after publication.)

According to Sanchez, Grillo said he would hear arguments related to the case April 29 and plans to enter a ruling on the matter the next day.

According to the lawsuit, the county registrar needs to know which boundaries to use by April 30.

Read the lawsuit filed by the city here. Plug in to more Election 2014 coverage in Berkeley on Berkeleyside.

Related:
Official pushes for independent redistricting panel (03.20.14)
Berkeley redistricting maps to be on November ballot, judge to choose which lines to use
 (03.12.14)
Council majority pushes redistricting decisions to March (02.26.14)
Berkeley redistricting referendum effort prevails (02.03.14)
Long-time Berkeley progressives back referendum drive (02.03.14)
Redistricting opponents secure signatures to secure vote (01.22.14)
Op-ed: We don’t need a redistricting referendum (01.10.14)
Tight deadline to get redistricting referendum on ballot (01.03.14)
Berkeley redistricting map splits council, community (12.18.13)

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