Plaintiffs’ expert in the Palmdale case (see earlier post), David Ely, sends along these thoughts via email:

1. Judge did not say that incumbency can never be a consideration, he said that it cannot be used to justify a plan that otherwise violates traditional redistricting criteria and is designed to maintain the existing power structure.  He quotes my characterization of their plan as an egregious incumbent gerrymander, and notes that it would work against remedying the violation. Going from an at large system found in violation to a district system is always going to need extra suspicion of incumbency protection. Since the incumbents were elected at large there are no issues of keeping officials with the constituents who elected them, as any district will do that.

2. While the CVRA standards may be much easier to meet than federal VRA standards, the case against Palmdale meets federal standards and could easily have been a Summary Judgment case in Federal court.  Defendants’ expert agreed that it was possible to draw at least one 50% Latino CVAP district, and that historical elections have been characterized by racially polarized voting, and that minority candidates of choice in city council elections have only won when they were Anglo choice as well. Defense argument was based on idea that Democratic candidates winning locally in partisan statewide contests, supported by Latinos and not by Anglos, meant that Latinos could elect candidates of choice. In addition Palmdale has an extensive history of racial conflict and official discrimination.

3.The Modesto case which the Supreme Court refused to hear raised the equal protection argument in a situation where a Section 2 case might well have failed.  There could be a case which raises the argument more compellingly, but that would require a judge to find a violation and order a remedy that could be said to violate Equal Protection as applied.  This case raises none of those issues, and I doubt that California Courts will apply the CVRA in a way that does.