U.S. Supreme Court justices in June decided that race can't be the only factor in determining school attendance policies. Modesto is arguing that the same standards should apply to its City Council elections.
The city on Thursday asked the Supreme Court to strike a 2002 state voting law that three Latino residents are using to sue Modesto for election reforms.
John McDermott, the Los Angeles attorney representing the city in the case, sharpened his argument to overturn the California Voting Rights Act on the court's recent decision prohibiting school busing programs in Kentucky and Washington.
In that 5-4 ruling on school boundaries, Chief Justice John Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
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In a petition to the court, McDermott wrote that the California voting law allows racial groups to overturn at-large council election systems, such as the one Modesto uses, without demonstrating discrimination.
Federal voting laws already protect minorities from discrimination at the polls, McDermott wrote.
He wrote that the court should strike down the California law because it "will lead to widespread unjustified use of race to invalidate literally thousands of at-large systems in California cities, school districts and special districts, without proof of racial injury."
The city's appeal stems from a 2004 lawsuit filed against Modesto by the Lawyers Committee for Civil Rights on behalf of Latino residents Emma Pinedo, Enrique Sanchez and Salvador Vera.
They argue that Modesto's at-large council elections dilute the power of minority votes. They seek district elections as a remedy to the racial polarization they see in Modesto voting patterns.
Only one Latino — Balvino Irizarry, who served from 1987 to 1991 — has been elected to the council in nearly 100 years.
California's 5th District Court of Appeal in Fresno upheld the state voting law and sided with the Latinos in December. The state Supreme Court in March upheld the law by declining to hear the city's case.
Attorney: State court got it right
Robert Rubin, the lawyer representing the Modesto residents, is expected to write an argument to the U.S. Supreme Court to try to persuade justices against hearing Modesto's latest appeal.
The U.S. Supreme Court typically receives thousands of petitions each year. Of those, it usually agrees to consider fewer than 100.
"We think the state court of appeal got it right and the Supreme Court ought to be deferential to the state court's interpretation of the state statute," Rubin said.
He said the June decision on school attendance showed "the court obviously has different views today than other compositions of the court did in the past on issues of race, but we still think they will come out the right way on this one should they take it for actual consideration."
McDermott must persuade four justices to consider the case to get it on their calendar. He said the city should hear whether the court will hear the case about October.
Two Southern California election law professors in May told The Bee the city has a good chance of getting its argument before the court because the California voting law goes further than the federal Voting Rights Act, and because newly appointed justices might be eager to leave their mark on the intersection of race and politics.
"It's understandable people are reluctant to oppose something called the 'voting rights act,' but if you look at the language of it, it goes far beyond what the courts have ever allowed before," said Doug Johnson, a district elections expert from the Rose Institute of State and Local Government at Claremont McKenna College.
In the meantime, Modesto is moving to place a measure on the November ballot that could lead to the creation of district elections for council races.
Voters are expected to see an "advisory measure" on that ballot. It would ask them whether they prefer one of two methods of district elections. The format that receives the most votes would be subject to a second, binding election in February.
Modesto has hired Johnson to advise the city on that measure.
Bee staff writer Adam Ashton can be reached at firstname.lastname@example.org or 578-2366.