LOS ANGELES – Every lawsuit filed or even threatened under a California law aimed at electing more minorities to local offices — and all of the roughly $4.3 million from settlements so far — can be traced to just two people: a pair of attorneys who worked together writing the statute, The Associated Press has found.
The law makes it easier for lawyers to sue and win financial judgments in cases arising from claims that minorities effectively were shut out of local elections, while shielding attorneys from liability if the claims are tossed out.
The law was drafted mainly by Seattle law professor Joaquin Avila, with advice from lawyers including Robert Rubin, legal director for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. Avila, Rubin's committee and lawyers working with them have collected or billed local governments about $4.3 million in three cases that settled, and could reap more from two pending lawsuits.
That's only a fraction of what might come. Dozens of cities and school boards have been warned they could be sued under the 2002 California Voting Rights Act.
All the cases have been initiated by Rubin's committee or Avila, who also is a member of the lawyers' group, according to an Associated Press review of legal documents, correspondence and legislative records, and interviews with lawyers, school and government officials, current and former legislators and voting-rights experts.
There is nothing illegal about the lawyers profiting from a law they authored and state lawmakers approved. But it is unusual that after seven years all legal efforts are so narrowly focused, especially since Avila told lawmakers when he testified for the bill in 2002 that he expected other attorneys would take on cases because of favorable incentives written into the measure.
Avila said the complexity of the litigation and the fact few attorneys are experts in voting rights have limited the number involved so far.
"I anticipate there will be more cases filed by other parties," he said.
Avila and Rubin say their roles in crafting the law shouldn't overshadow its importance and the need to use lawsuits and threats to end years of injustice at the polls. Those they target dispute the need for the law. The number of minority officeholders was climbing even before it was enacted, and they claim the lawyers are using the statute to shake down local governments.
"It's a money grab," charged John Stafford, superintendent of the Madera Unified School District that was slapped with a $1.2 million attorneys' bill even though it never contested a lawsuit.
The California statute targets commonly used "at-large" elections — those in which candidates run citywide or across an entire school district. Avila said that method can result in discrimination because whatever group constitutes the majority of voters can dominate the ballot box and block minorities from winning representation. As a remedy, the law empowers state courts to create smaller election districts favoring minority candidates.
Officials in several California communities said they never heard complaints of voter discrimination until the lawyers stepped forward. In one case, the Tulare Local Healthcare District, now known as Tulare Regional Medical Center, was sued even though its five-member governing board is a rainbow of diversity — two emigres from India, a Hispanic, a black and a white. The lawsuit argues Hispanics, who make up about a third of local voters, have been shortchanged.
That case could go to trial as early as January and is being closely watched by communities around the state. If the law is upheld, it could lead to a massive recasting of local election district boundaries, or more lawsuits.
Critics like Stafford see themselves as railroaded by lawyers armed with a law that's flawed and unnecessary. They say even if there's no discrimination, cash-strapped communities see little choice but to settle, given the risks of costly litigation and unwelcome publicity that comes with it.
A judge is reviewing the bill submitted to Madera. To pay, Stafford said the district would have to slash money for books and lunches for its mostly Hispanic students, an odd consequence for a law intended to aid Hispanics.
Though Hispanics constitute 76 percent of the city's population and a thin majority of its registered voters, according to court documents, the lawsuit claims Latinos are deprived of "the ability to meaningfully voice their preferences."
"To say that a majority can vote and say they have been discriminated against by a minority, when the majority has the power to elect whomever they want, is ridiculous," said Hans von Spakovsky, a former assistant attorney general for civil rights in the George W. Bush administration.
"The California law essentially requires that the ethnic group be guaranteed that its choices be elected. This is a clear violation of 14th Amendment. It makes race a predominant factor in elections."
Attorney Marguerite Mary Leoni represented the Hanford Joint Union High School District in a lawsuit the community settled for about $100,000, which it saw as cheaper than a court fight.
"It's a baffling law," she said. "I'm not quite sure it does anything to remedy discrimination."
Avila and Rubin dispute that, saying the law ensures minority voices are heard on election day.
Avila said the provision under which plaintiffs' attorneys can collect fees, expenses and expert witness costs, but not pay them if they lose, is a needed incentive for lawyers to take on cases.
Avila, who bills at $725 an hour, wouldn't disclose his earnings from the lawsuits. Though he drafted "probably the whole" law, "I don't think that should preclude me from enforcement," Avila said.
Rubin is paid a salary by the committee and can bill his legal work at $700 an hour.
California is among the nation's most diverse states. The number of Hispanics, blacks and Asians have together outnumbered whites since 1998. And by 2020 the Hispanic population alone is expected to top whites.
Between 1996 and 2008, the number of Hispanic elected officials in California jumped 82 percent, from 693 to 1,265, according to the National Association of Latino Elected and Appointed Officials. The mayor of Los Angeles, Antonio Villaraigosa, is Hispanic, as were three of the last six speakers in the state Assembly.
But a study released by the Latino Issues Forum in 2007 that found dozens of school districts with a majority of Hispanic students had few, if any, Latino board members.
"When you look at the local elected leadership, most of it is still white," said Avila, who teaches at Seattle University School of Law.
There are other factors in play beyond the shape and racial composition of districts. Historically, Hispanics turn out on election day in smaller percentages than whites or blacks. While the state population is about one-third Hispanic, they comprise only about two in ten of voters likely to turn out to vote, though that rate has been increasing.
Modesto was the first community targeted by a lawsuit from the lawyers' committee, which noted only one Hispanic was elected to the City Council since 1911 despite a significant Latino population. Modesto fought the case and Superior Court Judge Roger Beauchesne declared the law unconstitutional, saying it created preferential treatment for minorities without evidence of need. He also ruled the provision on attorneys' fees and expert witness costs amounted to illegal gifts of public money.
That decision was overturned on appeal, however, and the city eventually paid Avila, the lawyers' committee and a law firm working with them $3 million in a settlement after the U.S. Supreme Court declined to hear the case.
In the Ceres Unified School District, about 60 percent of the students are Hispanic. The district had two Latinos on its seven-member board when it was contacted by the lawyers' committee, which sued, alleging violations of the law, school officials said.
Superintendent Walt Hanline said the district decided to settle rather than fight.
"We said, 'We're not going to take textbooks out of kids hands for this. Why battle this issue and take the risk of losing millions of dollars?"' Hanline said.
The district has not been billed, but Rubin says he expects it only will be a few thousand dollars because it quickly agreed to change the way it conducts elections. He said the much larger settlement amount in the Modesto case reflected the extensive legal fight that ended at the Supreme Court.
Modesto, which is about one-quarter Hispanic, did not see a rush of minority candidates after new City Council districts were established, Mayor Jim Ridenour said. In a low-turnout election this month, one seat in a new Hispanic-majority district was won by David Geer, a 67-year-old federal security officer who is white.
Rubin concedes breaking up at-large elections doesn't guarantee more minorities immediately will be elected. What can be expected, he said, is a trend toward more diversity over time.
"Just because an African-American was elected president certainly doesn't mean that racial discrimination has sunseted, just like Bill Cosby having his own TV show didn't bring the end of racial discrimination," Rubin said.
"There's still much work to be done."