Ricci Redux in the Ninth Circuit



You might recall the notorious Second Circuit ruling in Ricci v. DeStefano in 2008, in which then-Second Circuit judge Sonia Sotomayor and her panel colleagues tried to bury the claims by 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. In a blistering dissent from the denial (by a 7-6 vote) of en banc rehearing, Judge José Cabranes (a Clinton appointee) condemned the panel’s mistreatment of the firefighters’ claims. As he summed it up:

[The panel’s] per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

As Cabranes suggested, the Supreme Court proceeded to grant review and, one year later—while Sotomayor’s Supreme Court nomination was pending—reversed the panel decision.

Welcome to Ricci redux. Last December, in a four-page unpublished per curiam opinion in Higginson v. Becerra, a Ninth Circuit panel breezily dismissed voter Don Higginson’s claim that the California Voting Rights Act is unconstitutional because it forces California municipalities to overhaul their electoral systems based solely on racial considerations. As in Ricci, Higginson’s claim of racial discrimination was politically incorrect, as he challenged the pervasive use of race in government decisionmaking. Unlike in Ricci, no Judge Cabranes emerged to call attention to the panel’s “perfunctory disposition” (perhaps because Higginson determined that en banc review would be futile).

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In his pending petition for certiorari in the Supreme Court, Higginson argues that by requiring municipalities to dismantle at-large voting systems whenever there is racially polarized voting in a community, the California Voting Rights Act makes race “not just the dominant factor but the only factor” for determining whether municipalities may use at-large systems. The petition has drawn support from three groups of amici that include California municipalities, current and former elected officials, and a number of policy and advocacy organizations. The defendants in the case—California attorney general Xavier Becerra, the city of Poway, and the California League of United Latin American Citizens—have chosen to lie low and not file oppositions. The petition is scheduled for conference next Thursday. Let’s hope that the justices give it the attention it deserves.


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