Newsom's Proposition 50 gerrymander upheld by divided Federal Court

Strong dissent filed. Elections to Congress in California will not be competitive with Democrats having huge advantages if ruling holds.

The Three-Judge Federal panel sitting in Los Angeles filed its decision today, after some delay, on the Plaintiffs’ and U.S. Department of Justice’s Motion for a Preliminary Injunction to declare Gavin Newsom’s Proposition 50’s highly partisan gerrymander of California’s Congressional districts unconstitutional because it referred to racial data in creating the lines. As some observers expected, the two Biden and Obama appointed judges concluded that eliminating the nonpartisan commission’s previous lines (which have allowed for 9 Republicans to be elected to California’s 52 Congressional seats by competitive format) was legal. The ruling will likely tank any competitive Congressional elections between Republicans and Democrats for the next three election cycles. (It will mean that voters in Norco in southern California, for example, who supported Trump by 72% of the vote, will be represented by Congresswoman Norma Torres, the first Guatemalan-born Member of Congress, who voted “No” on the Protection of Women and Girls in Sports Act supported by Riley Gaines). This decision was made over a strong dissent by Ninth Circuit Judge Kenneth K. Lee, a Trump appointee and the only appellate judge on the panel.

The majority decision covered some 70-pages and offered details about how various district lines were developed. The decision established a very high bar for the showing of evidence of racially-based gerrymandering, especially in District 13 in the Stockton area where Lodi as a city is divided into three different Congressional Districts, and states that the Plaintiffs failed to establish “serious questions going to the merits” despite this obvious example of a racial chop-up. On the Federal Voting Rights Act protections advanced by the Plaintiffs and the Department of Justice, to avert racial discrimination, including disenfranchising Asian and white voters, the Court devoted only four paragraphs to their Conclusion of consideration in their decision, simply saying they rejected evidence offered by the Plaintiffs that some racial groups were favored and others diminished by Proposition 50. Which would be illegal through another lens.

Justice Lee wrote a 46-page dissent which may set-up a potential appeal of the decision to the United States Supreme Court. He concludes:

“the Democratic supermajority in the California state legislature wanted to curry favor with Latino groups and voters—and to prevent Latino voters from drifting away from the party. One way to do that was to accede to Latino organizations’ request for Latino- majority congressional districts. Paul Mitchell’s public statements confirm that race was a predominant factor in devising Congressional District No. 13. We should accept the state’s mapmaker’s own words at face value when he said that he wanted to bolster a majority Latino district in the Central Valley,”

“But our Constitution does not allow the government to engage in such a racial spoils system. Race-based policies “‘embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.’” Miller, 515 U.S. at 912 (quoting Metro Broad. v. FCC, 497 U.S. 547, 604 (1990) (O’Connor, J., dissenting)). And if “our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.” Id. at 927 (quoting Edmonson v. Leesville Concrete Co., 500 U.S.614, 630–31 (1991)).”

“This court should have acted to prevent California from following an unlawful path that will inevitably sow racial divisions and upset the melting pot that makes California great. I respectfully dissent.”

Appeals are rare from Preliminary Injunction decisions and the case is technically on-going to trial, with the majority of the Court doubtful that Plaintiffs will win. But there is a path now to appeal to the U.S Supreme Court based on Justice Lee’s detailed dissent. We shall see in the next few days of an appeal is made!