Federal court orders delay in certification of local elections in Merced County
A federal district court has ordered Merced County and four cities not to certify all local elections held on Nov. 7 until a motion for preliminary injunction arguing violations of the Voting Rights Act is heard on Nov. 21. One election that won't be affected is for the 18th Congressional District. Rep. Dennis Cardoza, whose offices are on the third floor of the Merced County Administrative Building, fount of the "alleged" violations of the act.
Under the temporary restraining order written by Judge Oliver Wanger on Friday, one county-wide measure, Measure G, cannot be certified until the next hearing on the voting rights violations. The list of discrepancies and potential irregularities in this measure is growing by the day.
Local government is in a bad way when the most burning public issue is whether officials are corrupt or incompetent.
Bill Hatch
--------------------------------
Nov. 4, 2006
Merced Sun-StarVoting lawsuit may delay local results...John Ellis, Fresno Bee
http://www.mercedsunstar.com/local/story/12973317p-13624767c.html
FRESNO -- Certification of Tuesday's elections in four Merced County cities could be delayed by a lawsuit that claims the cities violated the Voting Rights Act by annexing land without federal government approval. In a worst-case scenario for Atwater, Gustine, Livingston and Los Banos, mayors and council members elected Tuesday could be delayed from taking office until the matter is resolved. During a hearing Friday before U.S. District Judge Oliver W. Wanger in Fresno, the cities agreed not to certify their elections until the Justice Department grants the approvals. "That was a major accomplishment," said Joaquin Avila, an attorney and Seattle University law professor who filed the suit on behalf of Los Banos residents Felix Lopez and Elizabeth Ruiz. If that doesn't happen by Nov. 21, a three-judge panel that day will hear a request by the two plaintiffs for an injunction that, if granted, would prohibit the elections from being certified until the Justice Department approves the annexations. If the case does move forward past Nov. 21, the four cities previewed their defense Friday. That defense: They are not subject to the Voting Rights Act.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FELIX M. LOPEZ and ELIZABETH RUIZ, individually and on behalf of those similarly situated,
Plaintiffs,
v.
MERCED COUNTY, CALIFORNIA; LOCAL AREA FORMATION COMMISION OF MERCED COUNTY (“LAFCO”), CALIFORNIA; CITY OF ATWATER, CALIFORNIA; CITY OF DOS PALOS, CALIFORNIA; CITY OF GUSTINE, CALIFORNIA; CITY OF LIVINGSTON, CALIFORNIA; CITY OF LOS BANOS, CALIFORNIA; BALLICO COMMUNITY SERVICES DISTRICT, CALIFORNIA; CENTRAL CALIFORNIA IRRIGATION DISTRICT, CALIFORNIA; DELHI COUNTY WATER DISTRICT, CALIFORNIA; EAST MERCED RESOURCE CONSERVATION DISTRICT, CALIFORNIA; FRANKLIN COUNTY WATER DISTRICT, CALIFORNIA; HILMAR COUNTY WATER DISTRICT, CALIFORNIA; LE GRAND COMMUNITY SERVICE DISTRICT, CALIFORNIA; LOS BANOS RESOURCE CONSERVATION DISTRICT, CALIFORNIA; MERQUIN COUNTY WATER DISTRICT, CALIFORNIA; MIDWAY COMMUNITY SERVICES DISTRICT, CALIFORNIA; PLANADA COMMUNITY SERVICES DISTRICT, CALIFORNIA; SANTA NELLA COUNTY WATER DISTRICT, CALIFORNIA; SNELLING COMMUNITY SERVICES DISTRICT, CALIFORNIA; SOUTH DOS PALOS COUNTY WATER DISTRICT, CALIFORNIA; TURLOCK IRRIGATION DISTRICT, CALIFORNIA; VOLTA COMMUNITY SERVICES DISTRICT, CALIFORNIA; WINTON WATER AND SANITARY DISTRICT, CALIFORNIA,
Defendants.
)))))))))))))))))))))))))))))))))))))))))))))))))
1:06-cv-1526 OWW DLB
THREE JUDGE COURT
ORDER FOLLOWING HEARING ON PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs, Felix M. Lopez’s and Elizabeth Ruiz’s Motion for Temporary Restraining Order came on for hearing on November 3, 2006, in Courtroom 3 of the above-captioned Court, Oliver W. Wanger, United States District Judge, presiding. Plaintiffs were represented by their counsel Joaquin G. Avila, Esq. and Brian Sutherland, Esq. Merced County was represented by its attorneys James N. Fincher, Esq., County Counsel Designee and Nielsen, Merksamer, Parrinello, Mueller & Naylor LLP by Christopher E.
Skinnell, Esq. and Marguerite Mary Leoni, Esq. The Local Area Formation Commission of Merced County (“LAFCO”) was represented by its counsel Best, Best & Krieger by Gene Tanaka, Esq.
Defendant City of Atwater was represented by its attorneys Allen, Proietti & Fagalde LLP by Salvador V. Navarrete, Esq. The City of Dos Palos did not appear. Winton Water and Sanitary District appeared by its attorney Craig Mortensen, Esq. The City of Gustine appeared by its attorneys Berliner Cohen by Thomas E. Ebersole, Esq. The City of Livingston appeared by Burke, Williamson & Sorensen LLP by Sarah Peters Gorman, Esq. The City of Los Banos appeared by its attorney Abbott & Kindermann LLP, by Joel Ellinwood, Esq. There was no appearance for the following Defendant Districts: Ballico Community Services District,
California; Central California Irrigation District, California; Delhi County Water District, California; City of Dos Palos, California; East Merced Resource Conservation District, California; Franklin County Water District, California; Hilmar County Water District, California; Le Grand Community Service District, California; Los Banos Resource Conservation District,California; Merquin County Water District, California; Midway Community Services District, California; Planada Community Services District, California; Santa Nella County Water District, California; Snelling Community Services District, California; South Dos Palos County Water District, California; Turlock Irrigation District, California; and Volta Community Services District, California.
After considering the Motion for Temporary Restraining Order, supporting declarations and legal authorities and the opposition legal authorities, declarations and oral arguments of all counsel, the following order is entered with the agreement of the parties.
IT IS ORDERED:
Certification Of Election Results
The County of Merced, City of Atwater, City of Gustine, City of Livingston, and City of Los Banos agree not to certify the results of County or City elections before the hearing of and decision on Plaintiffs’ Motion for Preliminary Injunction. If the City of Dos Palos is holding elections it shall not certify the result of its City elections before said hearing.
Exception
1. All City Defendants may certify the results of the
November 7, 2006, state-wide and federal elections, but not local elections. The County agrees not to certify any election results before hearing of and decision on the Preliminary Injunction.
2. Plaintiffs agree that if any Defendant receives
allegedly required DOJ pre-clearance or approval of all boundary change actions or other voting changes that are the subject of Plaintiffs’ Complaint prior to date of the hearing of the Preliminary Injunction, as to that Defendant, the Motion for Injunctive Relief is withdrawn and that Defendant shall be free to certify all its election results.
3. As to the non-County and non-City District Defendants
and LAFCO, no present injunctive relief is required as none of those Defendant Districts are holding elections November 7, 2006.
Order To Show Cause Re Preliminary Injunction
All Defendants, and those acting for, under or in concert
with them, shall show cause, if any they have, why they should not be enjoined from finalizing or certifying the November 7,2006, election results until there is full compliance with Section 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c.
The following schedule shall govern further briefing and hearing on the Order to Show Cause Re Preliminary Injunction:
a. Plaintiffs’ supplemental authorities and/or other
submissions shall be filed by midnight, November 8, 2006;
b. All Defendants’ oppositions to Plaintiffs’ motion for
Preliminary Injunction shall be filed by midnight, November 17,2006;
c. The hearing on Plaintiffs’ Motion for Preliminary
Injunction shall be held November 21, 2006, at 1:00 p.m. in
Courtroom 3, Seventh Floor of the above-captioned Court at 2500 Tulare Street, Fresno, California, before United States Circuit Judge Jay S. Bybee, United States District Judge Oliver W. Wanger, and United States District Judge Anthony W. Ishii, sitting as a three-judge district court pursuant to 28 U.S.C.
§ 2284.
No Testimony To Be Presented
After inquiry of each appearing party, no party intends to
present testimony at the OSC hearing.
DATED: November 3, 2006, at Fresno, California.
SO ORDERED
/s/ Oliver W. Wanger
OLIVER W. WANGER UNITED STATES DISTRICT JUDGE