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)

Berkeleyside publishes many articles every day. To see all our stories in chronological order, and read ones you may have missed, check out our All the News grid.

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  • Mfox327

    Excellent. The city needs to show that they will not negotiate with electo-terrorists.

  • Whoa Mule

    It is well established in California case law that a city cannot sue itself. Ironically, this is not the first time this has happened in Berkeley (Redevelopment Agency v. City of Berkeley, 80 Cal. App. 3d 158, 143 Cal. Rptr. 633 (1978)) Using the City Clerk as a surrogate for the City will not fly. The Registrar is following state law, which is a constitutional mandate. Furthermore, the city has the means to cure the controversy by voting in a new map using compromise.

    This lawsuit is a result of the group-think among the council majority. I think this action will have very negative repercussions for Laurie Capitelli’s ambitions to be mayor.

  • Biker 94703

    If the 2002 plan was good enough for 2012, it is good enough for this year.

    Can we please get a running total of what this fiasco is costing the hard-working taxpayers? It’ll be fine to ignore the hours that council and staff could have spent on something productive.

    Next election cycle, I’ll be looking for a council member who doesn’t need to be gerrymandered into my district.

  • hahaha

    Berkeley sues itself. Mind blowing.

  • Jesse Townley

    The Council majority should accept that 10% of registered voters are upset enough about their redistricting plan to sign a referendum petition against it, during a month when thousands of registered voters were out of town for winter break. [7,800+ signatures = 10% of registered voters]

    Their bosses (us voters) called them onto the carpet and said, no, please return to the drawing board & come up with something better. Instead, they’re suing to avoid having to do what voters have asked them to do- and in the process have apparently drawn another lawsuit based on shoddy procedure. (puts head in hands)

    The City Council should stop wasting money and do its job. Find a way to move forward through collaboration & compromise (a.k.a. practicing the art of governance). The Council should produce legislation, not litigation.

  • guest

    Kriss Worthington’s anti-student-district campaign is one step closer to sealing the deal on keeping UC Berkeley students from having a voice on the City Council!

    Thanks, Kriss!

  • guest

    The lawsuit is the result of Kriss Worthington trying to gerrymander a district he thinks will keep him in office.

  • Jesse Townley

    The article says that the original plan has 86% student-aged voters, while the new one from Kriss’s office has 90% student-aged voters.

    How does having more student voters rather than less in a district stop them from having a voice?

  • guest

    “The Council majority should accept that 10% of registered voters are
    upset enough about their redistricting plan to sign a referendum
    petition against it,”

    Which proves that there is a very committed MINORITY against this plan, not that there is a majority against it.

  • George Beier

    I’ve consulted with a lot of stakeholders and remain convinced that a compromise is easily achieved.

    I started with the BSDC map and, after considerable input, presented it to the Council where I got even more feedback (thank you). After added tweaking, I’ve been rallying support around the Compromise Map which contains 2/3 of the co-ops, dorms, and sororities/fraternities. If anyone wants to see it, please email me at georgebeierjr@hotmail.com.

    We can do all of this by changing the BSDC map — which the Council passed — by only 7 blocks.
    7 blocks! It’s just not worth fighting over (at the taxpayer’s expense of course!).

    Hopefully some influential councilmembers will co-sponsor an agenda item to adopt the compromise map. Then we can put this whole distraction behind us and get on with running the City.

    A compromise is possible. And easy. Let’s get this done!

  • Guest

    Because there is strong probability that the Berkeley electorate will vote down Worthington’s plan, because they don’t want a student district (many signers of the petition seemed to have that view). That would leave us with the districts as they are now. There is good reason to believe that that is what Worthington has been after all along, because he rightly suspects that he would lose his seat in a student-dominated district.

  • guest

    You could get thousands of registered voters in Berkeley to sign a petition to blow up the moon.

    Let’s not forget that there were many reports here on Berkeleyside of signature gatherers intimidating and lying to citizens about the nature of the petition.

    They shouldn’t have to compromise with Worthington’s selfish demands. There was a long, drawn-out public process of choosing new district lines. If he had really cared he should have been more involved in the process rather than ignoring it for years and then suddenly jumping in after all deadlines had passed because he was less concerned about his constituents than he was about keeping his job.

  • guest

    First, his wrongheaded petition is the only reason we don’t currently have a student district. If he hadn’t decided to throw a wrench in the works this whole matter would be over and done with. Thanks to what he’s done we’ve gone from having a guaranteed student district to having a significant possibility that there won’t end up being a student district at all.

    Second, he’s purposefully dividing up communities of interests in an attempt to deny a voice to students who live in the Southside neighborhoods. The issues facing residents North of campus are significantly different than the issues facing students South of campus. Worthington knows this, and knows that his record on quality of life issues in the Southside area is atrocious.

    86% or 90%, this petition and referendum have 0% to do with giving students a voice and 100% to do with Kriss Worthington caring more about his job than about the citizens of Berkeley.

  • Just Sayin

    But all these political whackadoos have egos that need to be stroked, so SOMEBODY HAS TO WIN!!!!

  • Just Sayin

    I think he cares more about his ego than his job. Just look at his performance as a councilmember…

  • guest

    In fact, posters here in favor of the petition said that signature gatherers outside Berkeley Bowl had said that signing the petition would “block a student district.”

  • Bill N

    Not all of the voters in the city ” called them onto the carpet and said, no, please return to the drawing board & come up with something better.” Some, like me and at least some of my neighbors, were happy with the new districts as redrawn and considered the referendum proposal un-needed. That said, this lawsuit properly tries to make the Nov vote representative by district and I don’t understand why that’s a problem.

  • Hildah

    Those 7 blocks represent, at least in Worthington’s world, his chance to get re-elected. City Council positions should not be a lifetime career.

  • George Beier

    Of course it shouldn’t be a life time career. But the purpose of redistricting shouldn’t be to get rid of (or keep) a particular councilmember. If you don’t like someone, vote him or her out.

  • guest

    It has nothing to do with what Bates does or doesn’t want – he didn’t submit any of the proposed maps.

  • guest

    But the purpose of redistricting shouldn’t be to get rid of (or keep) a particular councilmember.

    And that wasn’t the purpose of any of the maps that were seriously considered. The map that was finally selected after the long period of public discussion was created to try to give students more of a voice on the city council while also respecting communities of interest.

    Worthington, unhappy with that, wants to divide communities of interest for his own personal gain. What he’s done shows a profound disrespect for his constituents and for the citizens of Berkeley at large.

  • Whoa Mule

    This lawsuit is not about which of the proposed maps will be adopted. This is about which map will be used for the November election.

  • Whoa Mule

    The Registrar of Voters will be using the existing map as per State law. I understand your point, about the new map being more representative, but the petition blocked its adoption. The Registrar must follow state law and established procedures.

  • Whoa Mule

    I like your constructive direction here, George. However, I can’t see a compromise being reached until the lawsuit is resolved. But keep on pushing!

  • WillyWonka

    Expecting logic in Berkeleyside comments?
    You must be new here.

  • guest

    Neither should mayor.

  • Completely_Serious

    “What he’s done shows a profound disrespect for his constituents and for the citizens of Berkeley at large.”

    You mean redistricting, or his whole Council career?

  • Hildah

    If I could I would. Not in his district. I don’t see any reason why district 7 should have to cross to North of campus. Makes no sense at all. This is pure gerrymandering to keep Kris in office.

  • andrew johnson

    Two questions: Why are public funds being used to pursue the mayor’s personal vendetta against one particular councilmember? And why hasn’t CA Sec. State Debra Bowen been brought in, to provide some adult supervision to this mess? As it stands now, neighborhoods and candidates have no certainty over district boundaries in the upcoming elections.

  • emraguso

    This hearing is actually happening Tuesday at 1:30pm, for anyone interested.

  • Erich

    I was really hoping that the adults would not have to be called, MOM! Tommy is picking on Kris and now the carpet baggers are spending all my allowance trying to buy off Judges and Juries and Red Vines :-(

    This is just dumb, the entire concept of a student district is dumb, nit picking over a couple of votes is dumb, Tom and Kris are . . .

    Look if a student wishes to throw their vote in with a bunch of other students vacationing in Berkeley at Disney North let them move into the student district rather than mucking up perfectly good maps with graffiti, circles and arrows and an 8×10 color photo on the back of each one. Worthington and Bates should just leave. Just turn out the light, shut the door and walk away without a word. MOM!!! The City Fathers want to restructure Berkeley so it is more like the OC in Tie Dye! Can you spell phat retirement plan, wake me when it’s ovah.

    Speaking of ovah, who went to People’s Park 45 Birthday Party? I did and boy was it pathetic. All amped up and no where to go. Give that man a mic I can barely hear the deranged and offensive string of Tourettes free form poetry. Can someone please put the un-people’s park out of its misery?