Within days of the Supreme Court striking down the heart of the Voting Rights Act in June 2013, the mayor of this working-class industrial city set in motion a contentious change to the local election system that critics said was aimed at protecting white control of the City Council in the face of rapid growth in the city’s Hispanic population.
It set off a furor, which was only inflamed when at a subsequent redistricting hearing, the mayor, Johnny Isbell, brought a gun. At another meeting, he ordered police officers to remove a council member for violating a three-minute speaking limit.
Asked by SCOTUSblog why he was pursuing the change, Mr. Isbell replied, “Because the Justice Department can no longer tell us what to do.”
But just after the new year, a federal judge ordered the Justice Department to do precisely that — making Pasadena the first municipality in the country ordered by a court to submit, against its wishes, to federal approval of its electoral system since the Supreme Court’s 2013 decision.
The judge, Lee H. Rosenthal of the Federal District Court in Houston, ruled on Jan. 6 that the city’s change to the election system violated the Voting Rights Act and intentionally discriminated against Latino voters. Judge Rosenthal put the city under federal oversight, requiring Pasadena officials to seek advance approval from the Justice Department before changing the City Council election map and procedures, a practice known as preclearance.
“This is a message to those jurisdictions that the fact that they no longer have to preclear their changes doesn’t mean that they can discriminate against minority voters,” said Nina Perales, the vice president for litigation for the Mexican American Legal Defense and Educational Fund, which represented eight Hispanic voters who sued the city.
An appeal by Pasadena officials is likely, and a court could stay the ruling, blocking it from taking effect while an appeal moves forward.
“We’re exploring it, and there’s a reasonable chance that we’ll appeal,” said C. Robert Heath, the city’s lead lawyer in the case. “While we have great respect for the court, we disagree with its conclusion that the city acted with an intent to dilute the vote of its Hispanic citizens.”
Two smaller places, Charles Mix County in South Dakota and Evergreen, Ala., agreed to submit to federal oversight and are the only other jurisdictions required to get Justice Department approval before changing their election rules. Officials in Charles Mix County agreed in 2007, and those in Evergreen did so in 2014.
The outcome of the case in Pasadena is a major test of whether the Voting Rights Act in its diminished form remains a vital tool for minority voters, particularly as the Justice Department inevitably swings to the right in the Trump administration.
In this city that was once home to the Texas headquarters of the Ku Klux Klan, the judge’s ruling was hailed by Latino residents, election law experts and civil rights groups as a major victory and a reminder that the preclearance mechanism did not entirely vanish after the Supreme Court’s weakening of the Voting Rights Act.
But some advocates said that however welcome, the piecemeal, costly and after-the-fact litigation in the Pasadena case and similar ones that were pending are a far cry from the blanket protections for minority voters alleging discrimination under the Voting Rights Act.
“It just completely changes the calculus,” said Deuel Ross, a lawyer with the NAACP Legal Defense and Educational Fund. “These discriminatory changes can go into effect and stay in effect for years, while someone has to spend millions of dollars and hire an attorney in order to even potentially win it.”
In fact, Judge Rosenthal’s ruling came more than three years after the change to Pasadena’s election system was first proposed. One election in 2015 was held under the new system.
The changes at the center of the case redrew the Pasadena City Council map from eight neighborhood-based single-member districts to a mixed system with six single-member districts and two citywide at-large seats. The move to what became known as the 6-2 map eliminated one Hispanic-majority district and prevented Latino-backed candidates from winning a City Council majority.
At-large election systems in a number of cities and school districts have been found to have diluted minority voting strength. In communities where whites make up the majority of voters and where people generally vote in racial blocs, white voters can defeat minority-preferred candidates and elect white-preferred candidates for at-large districts that encompass the entire electorate. Smaller single-member districts can help minority voters elect candidates of their choice, because they can be drawn so that minority voters make up a majority in some of the districts.
Judge Rosenthal’s 113-page ruling describes a racially charged atmosphere in Pasadena politics to support its finding of intentional discrimination.
Councilman Ornaldo Ybarra testified that when he was campaigning in 2009, white residents told him that they “weren’t going to vote for a wetback.” Richard Scott, the city’s director of community relations and an ally of the mayor, directed a vendor to “pull out Hispanic names” from the mailing list of voters who would receive campaign materials in favor of the 6-2 map.
“At trial, Mr. Scott testified that when he wrote ‘pull out Hispanic names,’ he meant to direct the vendor to pull out the names of Democratic voters,” Judge Rosenthal wrote, one of several instances in which Pasadena officials “understood race and party as interchangeable proxies. By clearly and explicitly intending to diminish Latinos’ voting power for partisan ends, Pasadena officials intentionally discriminated on the basis of race.”
Pasadena is a majority-minority city of 150,000, where Hispanics account for 62 percent of the population but have long complained about a lack of city services and attention in their neighborhoods, which have aging roads and infrastructure. The city’s white population and its Latino population remain largely physically divided, as the judge noted. North Pasadena is older, poorer and predominately Hispanic, while on the other side of the Spencer Highway, South Pasadena is newer, wealthier and predominately white.
“They don’t listen to us,” said Patricia Gonzales, 49, a community activist who lives on the north side and who was one of the plaintiffs. “It’s like what we say doesn’t really matter.”
Three of the eight council members are Hispanic, but one of them, Councilman Cody Ray Wheeler, is a Latino with an Anglo surname, and the judge wrote that politicians in Pasadena thought Mr. Wheeler’s election “was the result of his Anglo-sounding name and the Anglo votes that attracted.”
In 2013, the council was split 4 to 4, with the mayor holding the tiebreaking vote: Four were aligned with the mayor and four were aligned with the Hispanic community. Many were convinced that in the next election cycle, the Latino-backed candidates would win four seats again, plus a fifth, meaning they would have a majority on the council for the first time in Pasadena’s history and weaken Mr. Isbell’s influence.
“Latino success in Pasadena elections has been slow, slight and disproportionately lower than Pasadena’s Latino population,” Judge Rosenthal wrote. “But Latino success has increased in recent years. Indeed, the plaintiffs’ theory of this case, which the court finds credible and amply supported by reliable record evidence, is that Pasadena changed to the 6-2 map and plan precisely because Latinos were becoming more successful at winning City Council seats.”
After the 2015 elections, the council remained divided 4 to 4 under the 6-to-2 map. Three seats were held by Hispanics and one of the new at-large seats was won by a white candidate who had the support of Hispanic voters, Councilwoman Pat Van Houte. The split was emphasized by the city’s lawyers in defending the new system. Mr. Heath said city officials did not think the 6-to-2 map discriminated “since Hispanics make up about 50 percent of the city’s citizen voting-age population and the 6-to-2 system resulted in the election of Hispanic-preferred candidates to half the seats on the City Council.”
An aide to the mayor referred questions about the case to Mr. Heath, the city’s lawyer.
Mr. Isbell appeared to accidentally drop the gun that he brought to the March 2014 hearing. At a trial held in 2016 on the voting-rights allegations, he testified that it was a broken pellet gun, a claim the judge discounted, saying in her ruling that the “credible evidence” was that it was a 9-millimeter Beretta.
Judge Rosenthal, the city and the plaintiffs are still sorting out a lingering question: how long the city should be under federal oversight. The judge asked both sides to suggest a time period, writing that five years “might be appropriate.”
Richard L. Hasen, an election law expert and law professor at the University of California, Irvine, said the relevant section of the Voting Rights Act gave the judge wide discretion. “You can guess that the plaintiffs will argue for a longer period and the city for shorter,” he said. “Without a very close look at the facts, I’m not in a position to say what I think is the ideal number here. But I don’t think choosing 10 years would be too long.”
This story originally appeared 1/15/2017 in The New York Times.