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Gaona v. Anderson

filed*fn*: February 24, 1993.

VENANCIO GAONA, VICTOR B. MOHENO, ARCADIO VIVEROS, PLAINTIFFS-APPELLANTS,
v.
SUSAN B. ANDERSON, FRESNO COUNTY CLERK-REGISTRAR OF VOTERS; GALE S. ENSTAD, KERN COUNTY CLERK-RECORDER; JOAN L. BULLOCK, KINGS COUNTY CLERK-RECORDER; MARCH FONG EU, CALIFORNIA SECRETARY OF STATE; CHARLES WEISSBURD, LOS ANGELES COUNTY REGISTRAR OF VOTERS; FRANK HESTON, SAN BERNARDINO COUNTY REGISTRAR OF VOTERS; NADINE SVOBODA, TULARE COUNTY CLERK, DEFENDANTS-APPELLEES, AND PETE WILSON, GOVERNOR OF THE STATE OF CALIFORNIA, DEFENDANT-INTERVENOR-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-92-07617-JGD. John G. Davies, District Judge, Presiding

Before: Goodwin, Schroeder, and Canby, Circuit Judges.

Author: Per Curiam

Per Curiam:

This lawsuit arises out of a special election scheduled to take place on March 2, 1993 in California state senate district 16 ("SD 16").*fn1 The election will fill the vacancy created when State Senator Don Rogers resigned from his SD 16 seat, to which he was elected in 1990.

California has 40 state senators who are elected to four-year staggered terms. Cal. Const., art. IV, sec. 2. Senators in the 20 even-numbered districts were elected in 1990; senators in the 20 odd-numbered districts were elected in 1992. Cal. Elec. Code § 30121. In 1991, when the Legislature failed to reach agreement on reapportionment of the state's senatorial and assembly districts after the decennial census, the Governor petitioned the California Supreme Court to adopt a reapportionment plan. The court appointed three special masters to propose a plan, and in 1992 the Court reviewed and adopted the proposed plan in Wilson v. Eu, 1 Cal. 4th 707, 823 P.2d 545 (1992). The court found that the special masters properly "attempted to draw voting district lines in such a manner as to maximize the opportunities for meaningful minority participation in California elections." Id. at 715. The newly configured even-numbered districts will not elect new representatives until 1994.

Appellants are three registered Latino voters who reside in the newly configured SD 16. They filed this action for declaratory and injunctive relief against California's Secretary of State March Fong Eu and six county officials responsible for the conduct of elections in the six counties affected by the special election.*fn2 They contend that "the decision to use the outdated version of SD 16 for the upcoming special election instead of the newly created district contravenes both the federal Voting Rights Act and the California Constitution."

The district court denied appellants' motion for preliminary injunction, finding that the appellants failed to show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) serious legal questions and the balance of the hardships tipping in their favor. Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1174 (9th Cir. 1989). We affirm.

ANALYSIS

A. Merits

1. California law requires the use of the "old" senate district for the special election

The decision to hold the special election in "old" SD 16 was based on established California law. In Sloan v. Donoghue, the California Supreme Court held that when the legislature changed the boundaries of a congressional district between an election and the death of the congressman elected, the special election to fill out the remaining years of the vacant seat was properly held in the district as it existed at the time of the dead legislator's election. Sloan v. Donoghue, 20 Cal. 2d 607, 127 P.2d 922 (1942).

In Legislature v. Reinecke, 10 Cal. 3d 396, 110 Cal. Rptr. 718, 516 P.2d 6 (1973), the California Supreme Court examined whether elections for state senate had to be held in all senate districts after a decennial census and reapportionment, or only in the 20 new even-numbered districts normally scheduled for that year. The court noted that if the California Constitution's provision regarding staggered terms were given effect, the senators in odd districts elected in 1972 were entitled to serve until 1976, and if vacancies occurred in those districts before 1976, they would be filled using the districts in effect in 1972. Reinecke at 404, citing Sloan. The court held there was no violation of equal protection in the continuance of staggered terms in state senate elections following redistricting. Id. at 406.

2. Voting Rights Act

Appellants contend that following the Sloan/Reinecke rule by holding this special election in "old" SD 16 violates section 2 of the Voting Rights ...


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