Yesterday Gavin Newsom and his associates met the deadline to file their oppositions in Federal Court in Los Angeles to the constitutional challenge to the partisan gerrymander of California’s 52 Congressional seats, and pulled no punches in their strategy to reverse the pressure of the lawsuit with their opening line, which quotes a communication from the Plaintiff California Republican Party (likely used in fundraising against the measure during the special election campaign) as essentially an “admission against interest.” “This special election is about one thing and one thing only: Democrats want to GUARANTEE a Democrat House majority,” citing to the CAGOP. Of course, partisan gerrymandering so far is legal, so the quote complains of a dastardly but still legal political action. It is racial gerrymandering that is not legal. Both things could be present in Proposition 50, but the measure will only be illegal if the facts show racial gerrymandering was employed as a key reason in drawing the lines. Newsom wants the three-judge panel in Los Angeles, who will hear the case at trial on December 15, to focus on the partisanship motivating Proposition 50, which is legal under current law, and not the facts the Plaintiffs will offer that race was used in drawing some or all of the districts, which is illegal.
Newsom’s opposition is 55 pages of argument and includes attached exhibits such as a report from Bernard Grofman, PhD, a Democratic expert on redistricting who teaches at U.C. Irvine, (117 pages), and Joanna Southard (84 pages). Separate oppositions were also filed yesterday by Defendant-Intervenors Democratic Congressional Campaign Committee and LULAC. (The filings by the DCCC and LULAC were allowed by the court but technically, curiously so, since they have been granted Defendant-Intervenor status, but have not “answered” the Complaint yet and have won a stipulation that they don’t have to do so till next January, when much of the judicial review may actually be over in the case.)
Newsom’s brief drills into the point that “Proposition 50’s partisan aim was no secret and expected to empower Democrats to flip five California Congressional seats currently held by Republicans - exactly the result the Legislature intended.” Such a statement to the Court is as true as it is crass and from the perspective of a person who thinks electoral lines should be drawn in a fair and neutral way to advance a competitive and representative Democracy, it is a sickening admission, but a legal one.
The supporters of Proposition 50 argue in their briefs filed yesterday that Plaintiffs’ claims of racial gerrymandering are a “flimsy veneer” and that Plaintiffs will fail to meet the constitutional standard to overturn the measure because they will not be able to meet the factual burden to show that race was the “predominant”, over all other factors, in constructing the lines. In this regard, while Newsom and company point to many statements made during the special election by opponents of Prop. 50 that attack partisanship in order to swing voters to vote against the measure, (and thus seem to validate Newsom’s claims), what matters was in the heads of the creators of Proposition 50 and not how Republican opponents campaigned against it. There are plenty of statements on the record among those who created the Proposition that make race the most prominent reason for creating it, and also for voting in favor of the measure. As the U.S. Department of Justice recounts press reports in their moving papers, in presenting draft maps to the group HOPE, “the first thing” Prop. 50 map drawer and scheduled witness Paul Mitchell said he did, “the number one thing that [he] first started thinking about” - was to create a new “majority/minority Latino district.” Mitchell, says the DOJ, said on X during the campaign that the “proposed Proposition 50 map will further increase Latino voting power over the current (nonpartisan) Commission map” and “likely will increase Asian American voting power.” Mitchell also is quoted as saying the new maps would add “one more Latino influence district.” These statements are among those that the DOJ will use to make the argument that race was not a secondary factor in creation of at a minimum that one new Latino dominant district, which will be a fact issue that the Newsom defendants will surely need to counter.
California really does not have any problems electing Latinos to office. Xavier Becerra and Alex Padilla are shining examples of the success of Latino candidates in the Golden state. But this did not stop a drumbeat of statements and admissions from Democratic elected officials who voted for Prop. 50 in the Legislature regarding what it was really about to them. Predominantly, it was about goosing Latino representation in Congress, and the reason to vote for it was racial. And those statements are facts that point in the direction of the unconstitutionality of the measure. For example, Assemblyman Mark Gonzalez, according to the DOJ’s filings, supported the measure to counter “racism…shield[ed] with [the] party line” in Texas. Assemblyman Isaac G. Bryan characterized his support for Proposition 50 in racial terms as well, to counter “what looks like…black Texans will lose much of their power.” Assemblyman Mike Gipson said “[it’s] about the next generation that we may not even have any black people serving in office to have representation.” He further stated that the Proposition 50 “map would serve as a “shield” to combat “racist maps” elsewhere”. Such statements by the creators of Proposition 50, the people who actually voted for it to placed it on the ballot, make it clear that race was indeed a factor for them, and will be the main subject of examination and argument at the hearing on December 15.
Time does not allow for a more comprehensive review of all the filings and evidence offered in yesterday’s extensive range of documents filed with the Court, but the above gives you a good broad-brush general idea of where the litigation is headed.
If you would like a PDF copy of the 55-page Newsom brief, please subscribe to my Substack and send me a request at james.lacy@wewerlacy.com, and I will send you a PDF of the document.