HomeMy WebLinkAbout01-136WHEREAS, the Board of Supervisors adopted Ordinance No. 3759, "An Ordinance
Amending Article IV of Chapter 2 of the Butte County Code Redistricting the Supervisorial
Districts in the County of Butte," on August 28, 2001, as required by California Elections Code
Section 21500 et seq.; and
WHEREAS, as set forth in Resolution No. O1-134, a protest petition against Ordinance
No. 3759, has been certified as having a sufficient number of signatures, and under Resolution
No. 01-134, the Board of Supervisors has ordered Ordinance No. 3759 to be submitted to the
voters at the March 5, 2002, election; and
WHEREAS, the County of Butte will conduct Supervisorial elections for Districts 2 and
3 in March 2002; and
WHEREAS, the Supervisorial District boundaries set forth in Article N of Chapter 2 of
the Butte County Code, which were adopted in 1991, are unconstitutional, under the Fourteenth
Amendment to the United States Constitution, and under the California Constitution, because
such districts have a "maximum population deviation," between the largest and smallest districts
that exceeds ten percent (10%), without any rational state interest for the deviation {White v.
Regester (1973) 412 U.S. 755; Chapman v. 11~Ieyer (1975) 420 U.S. 1; Connor v. Finch (1977)
431 LI.S. 407; Br~~wn v. Thamsan (1983) 462 L1.S. 835, 842-843; and Uointwich v. ~?uilter (1993)
507 U.S. 146), and these boundaries also fail to comply with more stringent state law standard in
Elections Code Section 21500, which mandates that Supervisor Districts be "as nearly equal in
population as may be." {See also, Calderon v. City ~f Las Angeles (1971) 4 Cal.3d 251; and
also County Counsel's Memorandum of August 10, 2001, pp. l -2); and
WHEREAS, Elections Code Section 9145 requires that the new Supervisorial District
boundaries established by Ordinance No. 3759 shall not become effective in the face of a
qualified protest petition unless and until a majority of the voters voting on the ordinance vote in
favor of it; and
WHEREAS, a conflict exists between the application of the Fourteenth Amendment to
the Ignited States Constitution and the California Constitution and Elections Code Section 9145
as to which boundaries shall be utilized for the March 5, 2002, election; and
A RESOLUTION DETERMINING THE
SUPERVISORIAL DISTRICT BOUNDARIES
TO BE USED FOR THE MARCH 5, 2002, ELECTION
WHEREAS, Elections Code Section 21506 prohibits the Board from changing
Supervisorial District lines within 45 days of the first day for circulating nomination papers for
the March 5. 2002, election, and
WHEREAS, the Board of Supervisors is authorized by law to redistrict under Elections
Gode Section 21500, and has performed that duty, and has the sole duty and obligation under
Elections Code Section 1300 et seq. to call elections for the offices of Member of the Board of
Supervisors; and
WHEREAS,. the Board in resolving this conflict must defer to the United States
Constitution and the California Constitution, as set forth by the California Supreme Court, in
Assembly v. l~eukmejiun (1982) 30 Ga1,3d 638, that a qualified referendum against a redistricting
plan that would otherwise suspend the effectiveness of the plan on a temporary basis for the
upcoming election will not prevent the use of the redistricting plan for the election where (a) the
alternative would be, as here, to use unconstitutional districts, (b) the use of the plan would be
temporary and less disruptive of the political process since if the plans were ratified by the
voters, the same plans would be in effect for the rest of the decade, (c) Ordinance No. 3759
would at least be closer to state and federal constitutional mandates than the current one, (d) all
other supervisor redistricting plans presented to the Board of Supervisors were rejected by a
majority of the Board; (e) there is insufficient time for the Board of Supervisors to consider and
adopt an interim plan due to the fact that petitions in lieu are currently outstanding and
nomination papers for the Second and Third District Supervisor offices will be subject to
issuance on and after October 28, 2041; and (f) this precedent is directly applicable here; and
WHEREAS, the County Registrar of Voters may have erroneously advised candidates
for Supervisor who have requested "petitions in lieu" of paying the tiling fee for such offices
that they may solicit signatures of residents in the districts encompassed by the unconstitutional
former Supervisor District boundaries; and
WHEREAS. candidates who have relied on this possibly erroneous advice of the
Registrar of Voters should not be penalized for this advice in payment of filing fees, and the
Registrar of Voters is without authority to establish that such candidates may obtain the
signatures of residents of the districts encompassed by the unconstitutional former Supervisor
District boundaries for their candidate nomination signatures.
NOW, THERF,FORE, IT IS RF,SOLVED, THAT:
1. Board of Supervisors authorizes the tiling of appropriate litigation involving the
County Clerk-Recorder in order to obtain a judicial declaration resolving the legal dilemma in a
manner that protects Butte County citizens' right to vote and equal protection of the laws in
redistricting, specifically seeking a determination that the County Glerk-Recorder shall conduct
the elections for Second and Third District Supervisors at the March 5, 2002, election using the
Supervisor Districts as set forth in Ordinance No. 3759, on the grounds that the former
Supervisor Districts are unconstitutional under the Fourteenth Amendment to the U.S.
Constitution, as having a maximum population deviation of greater than ten percent (10%), and
California Elections Code Section 2100, which require that supervisor districts be "as nearly
equal in population as may be," and the use of constitutional districts is required under directly
applicable precedent of Assembly v. I~earkmejian, supra.
2. The Board of Supervisors advises the County Clerk-Recorder to place potential
candidates on notice of the litigation and that a court may order the County Clerk-Recorder not
to count against any candidate's "petition in lieu" signature qualification, for purposes of
determining that candidate's filing fee for the office of Second or Third District Supervisor, the
valid signature of a resident of the former Supervisor District, on the basis of City of Ling Beach
v..Munsc~ll (1970} 3 Ca1.3d.462, and 13ourc~ of Supervis~ra~ nf~Alumeda County v. Superior Court
(I 9$3) I47 Ca1.App3d 20b.
3. The Board of Supervisors requests the County Clerk-Recorder to inform such
candidates, or others who may take out nomination documents, that given the pendency of
litigation, such signatures will not count toward the validity of the nomination petition signatures
submitted by such candidates pursuant to Elections Code Section 8068, and that a sufficient
number of signatures from the districts established by Ordinance No. 3759 may be required.
PASSED AND ADOPTED by the Qutte County Board of Supervisors this 26th day of
November 2001 by the following vote:
AYES: Supervisors Beeler, Yamaguchi, and Chair Josiassen
NOES: Supervisors Dolan and Houx
ABSENT: None
NOT VOTING: None
CUR~i' JOSIASSEN, Chair
Board of Supervisors
ATTEST:
LAWREN~;'E D. ODLE, Interim Chief Administrative Officer
and Clerk of the Board of Supervisors
~ ~ ~ '-~-
Deputy