Opinion: Redistricting Commission Risks Lawsuits

At the City of San Diego Redistricting Commission’s meeting last Saturday, Commissioner David Potter made two comments that have drawn the ire of many members of the public who have been engaged in the redistricting process. His comments reveal a firm belief that the boundaries for council districts should be based on the City’s community-planning boundaries, not on the racial make-up of the district. While I respect Commissioner Potter very much — indeed I supported his appointment to the Commission — his comments require a formal response.

The reason Commissioner Potter and his colleagues need to be challenged in this regard is that apparently they do not understand their job. What is more troubling, however, is that Commissioner Potter’s comments are inviting a major lawsuit. As a litigator, I fully subscribe to the notion that there is an important role for the right kind of litigation in maintaining the rule of law.

But I have no desire to sue the city over the redistricting process and hope that my comments will help the commissioners to avoid making a lawsuit-inviting mistake when they finally approve the new district boundaries. These comments are offered in my capacity as a taxpayer, as a private citizen who resides in the City and wants to see its redistricting process succeed without the substantial delay and expense of a voting-rights lawsuit.

(Full disclosure: I represented voiceofsandiego.org contributor and Redistricting Commissioner Theresa Quiroz in the recent lawsuit against her by county Republican Party Chairman Tony Krvaric; his lawsuit was so unfounded that the judge dismissed it in nearly record time. My comments here are my own.)

The redistricting process is essentially a legal process that results in a political outcome: the drawing of political boundaries. The process is governed by the U.S. Constitution and a powerful federal law known as the Voting Rights Act of 1965 (“VRA” for short).

In San Diego, the process is also governed by City Charter Section 5.1, which provides in relevant part: “Each redistricting plan shall provide fair and effective representation for all citizens of the City, including racial, ethnic, and language minorities, and be in conformance with the requirements of the United States Constitution and Federal statutes.”

San Diego’s Redistricting Commission must therefore do two things in adopting a final redistricting plan. It must adopt a plan that not only satisfies the Constitution and the VRA, but also ensures fair and effective representation for racial as well as ethnic and language minorities.

Under the U.S. Constitution and federal court decisions interpreting it, district lines may not be based solely or even predominantly on race. What redistricting must do is protect “communities of interest,” a term generally understood to mean a contiguous population that shares common social and economic interests that should be included in a single district in order to achieve fair, effective representation.

To protect communities of interest, the Redistricting Commission must first identify those communities that exist in the City. It does this by listening to members of the public who testify at Commission meetings and offer other evidence about the distinguishing features of the communities of interest they identify with. In other words, communities are defined by the people who live in them.

With “common social and economic interests” at the heart of “communities of interest,” there can be no doubt that race may end up being one of the many factors that the Commission must consider. This is where Commissioner Potter got himself into hot water. He explained that he was “never going to be able to support” a proposed second largely Latino district “done strictly on [a] racial basis.” Currently the only largely Latino district is District 8.

In isolation his words are consistent with the law, but the context in which he made his comments suggests that he was rejecting the proposal because race was a major consideration for its proponents in drawing the boundaries.

If that is indeed what he meant, then he left voting-rights lawyers chomping at the bit. Just as commissioners may not draw boundaries based on race, they may not refuse to recognize a community of interest just because its members consider race to be one of the things that unites them in their community in the first place. Plain and simple: The law requires the commissioners to protect communities of interest even when they are heavily comprised of racial, ethnic, or language minorities who tout that commonality as a defining characteristic of their community.

Commissioner Potter’s ignorance about the role of race in San Diego’s redistricting process is compounded by his belief that district lines should track, as much as possible, the boundaries drawn for the city’s numerous community plans. Community plans are a land-use device intended to accomplish two goals: identifying the presumptive geographical region where a proposed land-use decision’s effects will be felt most intensely, and laying out the specific uses and activities that will be allowed within each community so that we do not end up with schools next door to landfills and similar incompatibilities.

It is easy to understand why Commissioner Potter would have a predisposition toward relying on community-plan boundaries. He has decades of experience in land-use planning, and his record of service to San Diego in this regard is exemplary.

But community plans are problematic for redistricting purposes for lots of reasons. I will mention only the two biggest ones. First, they were not drawn with the goal of ensuring fair and equal City Council representation for those who live within the community-plan area; the Constitution, VRA, and Section 5.1 play no part in the drawing of the area’s boundaries.

Second — and for me this is just as big of a problem as the first — the community-plan boundaries were established by the members of the City Council. However, San Diego’s voters created the Redistricting Commission to get the politicians out of the district-drawing process in order to avoid the risk that their selfish desires to ensure their own reelections, as opposed to ensuring proper representation for the citizens of San Diego, would influence where the lines were drawn. The Redistricting Commission takes the power of drawing districts out of politicians’ hands and puts it back into the hands of the people.

Drawing district lines that intentionally track community-plan areas effectively leaves the fox to guard the chicken coop because politicians will end up drawing community-plan boundaries based on re-election potential (hoping that future redistricting commissioners will be just like Commissioner Potter), which is not good for purposes of ensuring adequate political representation or sound land-use planning.

What Commissioner Potter and his like-minded colleagues need to do is read City Charter Section 5.1 and, if necessary, ask the Commission’s legal advisers and experts in the community to provide more training on the role that race plays in redistricting.

Commissioner Potter is a good man, and he has a long history of doing what he sincerely believes to be in the best interest of the City. But he does not understand the distinction between communities of interest and race, and overall he is mistaken on the role of race in redistricting. Fortunately, there is still time for him to do his homework and make sure that the Commission adheres to the letter and the spirit of the VRA and Section 5.1.

Cory Briggs is the principal of Briggs Law Corporation, where he practices land-use and public-interest law. He lives in Point Loma.