This is to decide whether to lift or leave in place Judge Lee Rosenthal’s ruling that the pre-2013 all-single-member-district Council map will be in place for the May elections in Pasadena.
The City of Pasadena asked for the expedited hearing before the Fifth U.S. Circuit Court of Appeals on a narrow issue – the structure of Pasadena’s City Council districts for the upcoming election.
Hearing the case for the circuit court were judges Jennifer Walker Elrod, Priscilla Owen and Gregg Costa.
At a later date, the court will address the city’s appeal of a sweeping order from a lower court judge who threw out Pasadena’s city council election format, saying it was discriminatory against Hispanic voters.
The judge ordered the city to revert to a 2011 system for electing the council, with eight single-member-district seats, instead of the 2014 system that used six single-member and two at-large districts.
Attorney C. Robert Heath, who represents longtime Mayor Johnny Isbell, asked the appellate judges to grant a stay of the judge’s order because he said he was likely to win the overall appeal on the merits. His client did not intend to discriminate against Hispanic voters, and the election results did not reflect a diluted Latino vote, he said.
Costa pressed Heath about the harm that might be caused if the appellate panel switched the election to 6-2 and then the appellate court upheld the appeal.
“That’s significant harm, isn’t it?” Costa asked.
“It is if it has a discriminatory effect,” Heath said.
Nina Perales, with the Mexican American Legal Defense and Educational Fund, which filed the suit on behalf of Latino voters, stressed to the judges that the 8-0 system the lower court put in place would sufficiently eliminate questions of discrimination in Pasadena’s council race.
However, a decision by the appellate judges to temporarily lift the lower court’s 8-0 format would confuse voters and candidates who have already filed to get their names on the ballot and begun canvassing neighborhoods, she said.
“There is no reason to grant the stay based on (the city’s) likelihood of success because there is no single case supporting their contentions,” Perales said. “The case law is unified – if there is lower Hispanic registration and turnout rates it is tied to a history of past discrimination.”
See here for the background. Judges Elrod and Owen are both Dubya appointees, and are two of the more conservative members of the Fifth Circuit, so this is about as friendly a panel as Pasadena could have wanted. The city has the burden of proof here – they need to show that Judge Rosenthal erred in her ruling. We’ll see if the Fifth Circuit grades them on a curve for that. Given the time frame – the filing deadline is in two weeks, and multiple candidates have already filed for each of the eight Council seats – we should get a ruling shortly.