Frustration, Anger, and Hope
By Morgan Hill Council Member John McKay
I really felt like I needed to address what I believe is one of the strangest things the Morgan Hill city council has ever done. The initial adoption of what had been deemed as an illegal redistricting map by the majority of the city council before a conclusive court decision, and after the court ordered adoption of a legal map, some on the council wanted to appeal even without a legitimate legal argument that reinforced or bettered the original argument. It is a huge concern for me that a city council would behave in such a blatantly illegal manner with such very poor reasoning driving their efforts. I’m breaking it down into five parts here for you (it’s a looong read…):
Background - It’s About the Laws
Definitions and Clearly Identifying “Communities of Interest”
The City Council Meetings
The Court’s Legal Decision and Final Council Actions
Information and Resources
Background - It’s About the Laws
Right after the decennial population census in 2020 all voting districts must be redistricted; Federal, State, County, City and School. Like every public body requiring elections we had to create districts that would meet the needs of the next ten years of our community – and meet updated legal requirements of the laws of our land, primarily the Fair Maps Act and the California Voters Rights Act. We created city council districts in 2017, which was not an easy lift, but we benefitted from a better understanding of our community, we have great diversity and great distribution of that diversity. I believe that distribution of diversity shows we have a city that has done a good job of attempting to make everyone welcome in all parts of the city.
So, theoretically we didn’t need to change our districts because that original work was well done but there was one catch – in 2019 the State Legislature adopted the Federal Fair Maps Act to include “Contiguity” as the top priority of the four items that we would use to establish our reworked districts (in Order of Priority: Contiguity, Communities of Interest, Easily Identifiable Boundaries and Compactness).
Here is a section of the Staff report of March 2nd, 2022 - the new criteria established in January 2020 by the California State Legislature:
The City adopted its current district boundaries on September 6, 2017, based on 2010 census data as required by law. The districts must now be redrawn using the 2020 census data and in compliance with the FAIR MAPS Act, adopted by the California legislature as AB 849, which took effect January 1, 2020.
Under the Act, the City Council shall draw and adopt boundaries using the following criteria in the listed order of priority (Elections Code 21601(c)):
1. Comply with the US Constitution, the California Constitution, and the federal Voting Rights Act of 1965, including the federal requirement that districts maintain equal populations.
2. Geographically contiguous
3. Undivided neighborhoods and “communities of interest” (socio-economic geographic areas that should be kept together)
4. Easily identifiable boundaries
5. Compact (do not bypass one group of people to get to a more distant group of people)
6. Shall not favor or discriminate against a political party
Once the prioritized criteria are met, other traditional districting principles can be considered, such as:
1. Minimize the number of voters delayed from voting in 2022 to 2024
2. Respect voters’ choices/continuity in office
3. Future population growth
Definitions and Clearly Identifying “Communities of Interest”
After some research I found out that a common practice when jerrymandering districts was to reach across some precincts to others which were advantageous to a special interest – cherry picking voters. The State Legislature wanted that to be removed from the realm of possibilities so with the help in the way of direction from Common Cause and the ACLU made contiguity the number one priority when redistricting.
The second priority was “Communities of Interest” which meant that any geographically defined area with a population of residents that had social or economic interests should not be split up to reduce their strength to vote for their interests within a district. If a community of interest represented over 50% of a district then that entire district could be considered a community of interest, but with the great distribution of most ethnic groups and other potential communities of interest that would be extremely difficult to achieve in Morgan Hill.
Please remember, a Community of Interest must be identified with a geographical boundary – you need to be able to draw an outline around it on a map so you can identify and not split it up. A District cannot be a community of interest unless over 50% of the District is made up of the identifiable interest.
Practicable and Contiguous were defined multiple times over several meetings. There was a lot of discussion regarding what these words meant from a legal perspective, they mean the same thing as Miriam-Webster defined.
From Miriam-Webster: Practicable: capable of being put into practice or of being done or accomplished : FEASIBLE
From Miriam-Webster: Contiguous: being in actual contact : touching along a boundary or at a point : the 48 contiguous states
The City Council Meetings
We received several redistricting maps from the public in this public process and a few by the demographer hired to help us with this very special project. I found out the demographer is recognized as one of the best in the business, so with our City Attorney and our consultant I felt we had the best guidance possible (this would be borne out later…). We received very clear definitions of “practicable” and “contiguous” which some would claim was never made clear – I understood them clearly from the very first definition provided. The definitions of practicable and contiguous would prominently and often appear as reasons for ongoing debate during meetings and in the media, social and news.
We had several maps and all would meet the contiguity priority except one, Map 103. Any other map would meet the revised Fair Maps Act requirement, please keep that in mind...
We only had one map submitted that clearly identified a “community of interest”. It was Map 105 submitted by community member Armando Benavides with the assistance of the Mexican American Legal Defense and Education Fund (MALDEF). So we had one map which identified a Hispanic community of interest with the requisite geographical boundaries that needed to be respected. No other “Communities of Interest” were ever clearly defined with boundaries like this early submission, even after I repeatedly asked, as well as a community member.
The “Community of Interest” is clearly identified by Mr. Armando Benavides in his Map 105 (included below) and was submitted very early in the process (December/January timeframe). I believe this clearly indicates that Mr. Benavides understood from the very beginning how a Community of Interest should be identified – with clearly identifiable boundaries so you know when you are possibly encroaching upon or splitting up a Community of Interest. The hatched area with “COI” on Map 105 indicates that Community of Interest.
Note: Please go to the City Council Meeting video at 1 hour 36 minutes (link to video below) to hear my succinct question about whether or not “Communities of Interest” needed clearly identifiable boundaries and my summary of how we had never heard the concerns of our community before and how we should all be the representatives of our community. Link to meeting: https://morganhillca.civicclerk.com/Web/Player.aspx?id=233&key=-1&mod=-1&mk=-1&nov=0
“Communities of Interests” as defined do not include relationships with political parties, incumbents, or political candidates. Please remember this…
We had a series of public meetings so we could hear from the public and have a discussion amongst the council members. At the February 16 Council Redistricting Workshop the council directed staff to move five maps forward which did not include Map 105. However, since staff felt that Map 105 was the only map that included a “Community of Interest”, as legally defined with a geographic boundary, and was submitted with the aid of a recognized civil rights group (MALDEF) it should be respected and brought forward even though it represented the proposed redistricting map which created the greatest change for voters and council members for Districts A & C.
Over the next couple of meetings it became apparent that some on the council wanted to forget Map 105 (inconvenient?) and move the only map not in compliance with the priority of “Contiguity” forward, Map 103. Although Map 105 clearly indicated a “Community of Interest” it was also very disruptive to all the existing council districts and honestly may not have represented the best choice overall.
Most of the comments from the public became focused on the concern they might lose their specific council representative, one whom they felt would best represent the Hispanic community. However most of these speakers did not live in the effected districts or even live in Morgan Hill (remember, we couldn’t redistrict based upon favored incumbents or candidates).
Then, at the next meeting, the argument shifted from an ethnic minority to a group of renters as the “Community of Interest”, implying most renters were economically disadvantaged members of the Hispanic community.
At the March 2nd council meeting I listened to the community and understood they wanted a map with the least amount of change and to try to keep the Hispanic community intact (even though we had never been provided with the required defined boundaries). To me that map was the NDC Green Map which I motioned to move forward based upon the statistics of population percentages and voter registrations (which was the same or within a few percentages of the Map 103). However during that hearing Mr. Benavides vocally supported Map 103, not the legal and Hispanic community respecting Map 105 he submitted, and threatened legal action against the City if it was not adopted. When it came time to vote for the map to submit to the county as our City Council Redistricting Map the council voted 3 to 2 in favor of Map 103, the only map which did not meet legal requirements. The swing vote, Mayor Constantine, clearly identified the threat of a lawsuit as the reason for the vote for Map 103 - the threat of lawsuit made by Mr. Benavides. Note: A response to a council member question provided during the meeting indicated the City could recover legal costs if Mr. Benavides sued as threatened and the City prevailed. Since prevailing in this case appeared to be a long shot for Mr. Benavides it was questionable whether he would ever have the nerve to file a suit against the city (he would have to pay his own and the City’s attorney’s fees if he lost). But others were now paying attention…
We had another opportunity to select a legally compliant redistricting map on April 6th after we actually received notification of a lawsuit to select a legal map. A demand letter had been submitted by attorney Christopher E. Skinnell of NIELSEN MERKSAMER PARRINELLO GROSS & LEONI LLP on March 23, 2022. Plaintiffs were Steve Tate, Swanee Edwards, and Brian and Cathy Sullivan. The law firm is recognized as one of the top law firms practicing election law in California.
Again at the April 6th meeting, essentially the same community members made the same arguments in favor of Map 103 highlighting issues like fear of losing their voice and citing their appreciation for one council member. Now the main reason for wanting to keep Map 103 for the swing voter was the concern for the “Community of Interest” which had yet to be properly defined and not the threat of a lawsuit which had actually shown up. A clear shift in reasons.
The strangest motion was made at the April 6th meeting to pursue a “Validation Action” which would intentionally open the City to a lawsuit from anybody with a legal interest. It’s a way to float a trial balloon to find out if a legal challenge existed out there – but the city could potentially incur large legal costs since the City would have to pay the prevailing party’s legal fees, and there could be more than one suit filed. I later found out it also takes about three months just to get to the point where it could be heard by the courts, that would put us in July and any decision would be well beyond when candidates have to submit intent papers with the County - and it has never been used for election law. Too late and too unsure for us to pursue in my mind.
The validation action never really had a chance to be implemented but it didn’t matter as a lawsuit was filed shortly after that meeting invalidating any opportunity to try.
We now actually appeared to be involved in a true lawsuit now being defended by the very person who promised to sue the City - Mr. Benavides (the word “ironic” has been voiced constantly about this…). In closed session three members of the City Council had voted to have Mr. Armando Benavides represent the City in this case. I and Council Member Borgioli left the closed session meeting before the vote. I left due to the certain behaviors, I believe Mr. Borgioli did too.
Do you see the irony in all this?
The reason the City Council hired an outside attorney was because City Attorney Don Larkin exhibited the highest, and most difficult, in ethical and professional values and recused himself from the case, a case he warned us would likely take place if we adopted the illegal Map 103. He could not represent the City under these circumstances and I greatly respect that – he simply could not defend the City in an action he had advised against because of professional ethics and moral values.
The lawsuit had been brought forward by former Mayor Steve Tate, Man and Woman of the Year Brian and Kathy Sullivan and local activist Swanee Edwards. In the print media and social media they were immediately attacked and vilified. How could the former Mayor sue his own city? What’s wrong with these people who are suing the city? What’s wrong with the illegal map, it doesn’t hurt anyone? Why didn’t the plaintiffs say something sooner in the series of meetings?
I’m sorry but the law is the law and these people care about our city being run legally. I find it difficult to understand why the very people tasked with creating and upholding the laws of our city (the City Council) violated the law as it’s known now - not how it might hoped to be interpreted in the future if we were the agents of change and initiated a long and costly series of court battles to change a law. Who is being hurt by keeping Map 103? Well, who would be hurt by adopting the NDC Green map which has almost identical statistics and is legal? (see Information and Resources below) I asked the plaintiffs the question about why they hadn’t spoken up earlier and they said they didn’t believe the council would ever go where it did, the criteria was obvious to them.
My concern, was then and still is, is this issue is being used to drive a wedge between different groups in our community?
The Court’s Legal Decision and Final Council Actions
On May 9, 2022 the case was heard in court. It was over extremely quickly, in about 45 minutes. The Judge exhibited she had done her homework and knew the background of the law and the legislative history and easily responded to the defense’ comments. Considering the importance to the City’s hired attorney, and the City, I was surprised to hear the same arguments presented to the court we had all heard before in council meetings. I thought there must be more of a legal argument than what had been presented all this time in council meetings. The Judge sounded possibly annoyed as she stated that everything being said was already in the brief. The Plaintiff’s Attorney never said anything more than “I have no comments or questions” as the City’s Attorney did not present a defense but only repeated what had already been heard and presented in the brief and the City’s consulting attorney only presented case history which was presented only as various case law numbers. Contracted Attorney Baller for the defense said he only wanted to be there to hear about the follow up process. It was over incredibly quickly and the City lost, resoundingly.
On May 18th we had to satisfy the court order to select a legal map and we did with the NDC Green Map, the same map I proposed on March 2nd. Even at this point one council member continued to vigorously challenge and continued to misunderstand a consultant’s explanation of the requirement for defined communities of interest. That council member continued to forward the idea it could be an entire district (please remember - it could not unless over 50% was of the same community of interest at which point the district could be considered a community of interest - below that it could be considered gerrymandering). The council member submitted two redistricting maps for consideration, both would need review and needed to be circulated to the public for seven days and they were submitted with only five days for review. The maps also possibly created issues with “compactness” and, in my opinion, were crafted with an intent to specifically include some community members with its irregular borders. There was aggressive questioning around if the City could file an appeal and why it hadn’t been done. The general consensus was there was no way to win the appeal and it was likely the City had already missed the window of opportunity to file an appeal. Apparently the attorney the three council members had hired had not assisted them in understanding their options in a timely manner.
At that meeting I made the motion with an impassioned plea for us to get back together and work for our community. That motion was to adopt the NDC Green Map which I had proposed over two months earlier. It passed with a vote of 4-0 with one abstention.
Up to this redistricting discussion any possible disparity in treatment to different ethnic or economic groups of residents had not been brought forward to this council to review and act upon - most of that is already addressed by the Federal and State government regulations. If there is something we can do as a city council then we need to know about it so we can take action as the council, introducing it as an issue during redistricting is of poor timing and can get lost in the redistricting issue discussion (has it already?). Let’s have a real discussion about our community at the appropriate time so we can focus on it. It had not taken place before the redistricting process at over 3 years into the current council term for that district. It is not incumbent upon only one council member to support a group within our community, it is incumbent of all five to support all individuals and groups in our community to the best of our abilities, which is admittedly often somewhat limited.
I’ve been frustrated and angry but now I’m hopeful that we can move forward as a united community. I had begged, no matter the outcome of the lawsuit, please let’s not gloat or become vindictive, let’s move forward together. Morgan Hill united together is a great place, a divided Morgan Hill is not.
Information and Resources:
City website page that requested “Community of Interest” information from the community. It includes a definition of what a community of interest is. Link to page:
https://www.morgan-hill.ca.gov/2181/Community-of-Interest-Information
Maps 103 and NDC Green statistics for comparison:
Link to Map 103:
Link to the NDC Green Map:
Link to final Morgan Hill Times article on redistricting:
https://morganhilltimes.com/under-court-order-city-council-nixes-non-contiguous-district-map/
Notable excerpt from the Times article:
“Martinez Beltran had also submitted two new versions of Map 103 with modifications, but these were not presented with enough public notice to avoid further legal action and potentially higher litigation costs.
Morgan Hill resident Doug Muirhead wrote in a public comment for the May 18 agenda item, “Due to the seven-day map circulation requirement, the council does not have time to make changes to any of these maps and still meet the court deadline. So this is another waste of our time.”
Muirhead recommended that the three councilmembers who voted for Map 103 should “donate their monthly pay to the (city’s) general fund until it is made whole for the estimated $80,000 to $100,000 legal costs that they inflicted on us.”
Questions I ponder, maybe you can help me here:
Why did the Mayor feel strongly enough by a threat of a lawsuit by a well known local activist to say it made him vote for Map 103 and then ignore the actual lawsuit by a well known law firm when it showed up?
Why did Armando Benevides submit Map 105 which clearly indicates he understood the concept of defined geographical boundaries for communities of interest and go on to appear to ignore that concept later in the process?
Why did the Mayor later state that the communities of interest were the driving factor for his vote after his clear and repeated statement that he was trying to avoid a lawsuit?
Why would anyone say they did not understand “contiguous” and “practicable” after repeated clear definitions of those terms?
Why did Attorney Armando Benevides not provide a stronger case than just repeating what he said at council meetings? In all fairness he did not charge the City for his time but ultimately it cost the city’s taxpayers over $80,000 in the end.
The Mayor clearly didn’t fully understand what a “validation action” was and yet submitted it as an alternate action for council decision and vote. Council Member Martinez-Beltran stated at the meeting that the Mayor stopped the discussion in closed session before we could get an understanding of what it was and yet it was still motioned for a vote and voted upon. The next morning, after the action was approved 3 to 2, I found out the process necessary would take at least three months to prepare for the courts and then the added court time. Why was this action submitted and who provided the guidance (or lack or)?
With the statistics of Hispanic voter numbers being almost identical, and within the statistical margin of error, between the court deemed illegal Map 103 and the NDC Green Map ultimately adopted, why was the original argument that the Hispanic voters needed representation so prominent? Is there something different about the Hispanic voters in the in the different areas?
