Goodwin v. Alameda County Notice of Motion and Memorandum of Points and Authorities in Support of Motion for Peremptory Writ of Mandate

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BILL LANN LEE 
MARILYN 0. TESAURO 
JOCELYN D. LARKIN 
JOHN R. PHILLIPS
Center for Law in the Public Interest 
10951 W. Pico Boulevard, Third Floor Los Angeles, CA 90064 
(213) 470-3000
HENRY HEWITT 
ROBERT ATKINS
Erickson, Beasley & Hewitt 
12 Geary Street, 8th Floor 
San Francisco, CA 94108 
(415) 781-3040

£ N  &  o  c-
~ I L ® ~ ~P

JUL is 1334
m E  C uAviû u, county Clern 

By Peggy Waller Deputy

Attorneys for Petitioners 
and Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA 
COUNTY OF ALAMEDA

GLINNES GOODWIN and FRAN WHITE, )
)Petitioners and Plaintiffs, )
)v- )
)COUNTY OF ALAMEDA; BOARD OF )

SUPERVISORS OF THE COUNTY OF )ALAMEDA; DON EXCELL; CHARLES )SANTANA; FRED F. COOPER; )
JOSEPH P. BORT; JOHN GEORGE; )
REGISTRAR OF VOTERS OF THE )
COUNTY OF ALAMEDA; and )
DOES 1-20, inclusive, )

)Respondents and Defendants. ) 
_____________________________)

No. 583547-4
NOTICE OF MOTION 
AND MOTION FOR 
PEREMPTORY WRIT OF MANDATE
HEARING: August 14, 1984

2:00 p.m. 
Department 1

TO: RESPONDENTS AND DEFENDANTS COUNTY OF ALAMEDA; BOARD OF
SUPERVISORS OF THE COUNTY OF ALAMEDA; DON EXCELL; CHARLES 
SANTANA; FRED F. COOPER; JOSEPH P. BORT; JOHN GEORGE; AND 
REGISTRAR OF VOTERS OF THE COUNTY OF ALAMEDA:

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PLEASE TAKE NOTICE that on August 14, 1984, at 2:00 
p.m., or as soon thereafter as the matter can be heard, at the 
courtroom of Department 1 at the Alameda County Superior 
Courthouse, 1225 Fallon Street, Oakland, California, petitioners 
will move the Court for a peremptory writ of mandate commanding 
respondents, as quickly and expeditiously as possible, to 
undertake the following actions so as to accomplish compliance 
with the mandatory duties imposed by the equal protection clause 
of Article I, § 7 of the California Constitution:

1. To rescind Ordinance 83-077 ("the 1983 
Redistricting") inasmuch as it adjusted the boundaries of 
Supervisorial District 3;

2. To restore to District 3 the predominantly black 
areas discriminatorily gerrymandered out of District 3;

3. To return to the boundaries of District 3 that 
existed prior to the adoption of Ordinance 83-077, or, to assure 
that any revised redistricting plan results in an equal 
distribution of population among the districts without reducing 
black voting strength in District 3.

The application is being filed at this time because 
discovery has established respondents' clear failure to perform 
their duty, required by Article I, § 7 of the California 
Constitution, not to reduce the voting strength of black 
residents of District 3.

The instant application is based on (a) the accompany­
ing Memorandum of Points and Authorities in Support of Motion 
for Peremptory Writ of Mandate; (b) the verified Petition for 
Writ of Mandate and Complaint for Declaratory and Injunctive

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Relief and respondents' Return and Answer filed herein; (c) the 
lodged depositions, including attached exhibits, of District 1 
Supervisor Don Excell (taken April 27 and 30, 1984); District 2 
Supervisor Charles Santana (taken June 12, 1984); District 3 
Supervisor Fred Cooper (taken April 24, 1984); District 4 
Supervisor Joseph Bort (taken April 19, 1984); Alameda County 
Planning Director William Fraley (taken April 17 and 18 and 
May 2, 1984); and Charles Brown (taken June 4, 1984); (d) the
accompanying Declarations of Robert Atkins; Leo Bazile;
District 5 Supervisor John George; Jocelyn Larkin; Wilson Riles, 
Jr.; Sandre Swanson; and Mary Watson; (e) the accompanying 
Declaration of Christina Concepcion with the attached transcript 
of the Board of Supervisors' meetings of October 4th and 11th; 
and (f) such further evidence and argument as may be produced at 
the hearing upon this application.
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For the convenience of the Court and the parties,
petitioners' verified Petition for Writ of Mandate and 
respondents' Return and Answer, the excerpts of the lodged 
depositions and the exhibits to depositions cited by the 
petitioners in the Memorandum of Points and Authorities have 
been filed in an accompanying compilation, entitled "Record 
Excerpts."

Dated: July 12, 1984
Respectfully submitted,
BILL LANN LEE 
MARILYN O. TESAURO 
JOCELYN D. LARKIN 
JOHN R. PHILLIPS
Center in for Law in the

HENRY HEWITT ROBERT ATKINS
Erickson, Beasley & Hewitt

ROBERT ATKINS
Attorneys for Petitioners 

and Plaintiffs

By

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CERTIFICATE OF PERSONAL SERVICE

I, ROBERT ATKINS, declare and say:
That I am an attorney for petitioners and plaintiffs 

in the above-entitled action.
That on July 13, 1984, I personally served the

attached NOTICE OF MOTION AND MOTION FOR PEREMPTORY WRIT OF
MANDATE upon counsel for respondents herein, by delivering a
true copy thereof to:

RICHARD J. MOORE 
County Counsel 
DOUGLAS HICKLING 
KELVIN H. BOOTY, JR.
Assistants County Counsel 
County of Alameda 
1221 Oak Street, Suite 463 
Oakland, California 94612

Executed this 13th day of July, 1984, at San 
Francisco, California.

I declare under penalty of perjury that the foregoing 
is true and correct.

ROBERT ATKINS



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BILL LANN LEE 
MARILYN O. TESAURO 
JOCELYN D. LARKIN JOHN R. PHILLIPS
Center for Law in the Public Interest 10951 W. Pico Boulevard, Third Floor 
Los Angeles, CA 90064 
(213) 470-3000
HENRY HEWITT 
ROBERT ATKINS
Erickson, Beasley & Hewitt 
12 Geary Street, 8th Floor 
San Francisco, CA 94108 
(415) 781-3040
Attorneys for Petitioners 

and Plaintiffs ..

2 H & 0 8 S E D
F I L E  B>

jut is m

RENE C. DavIDSON, County ClerK 
By Peggy Waller Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA 
COUNTY OF ALAMEDA

GLINNES GOODWIN and FRAN WHITE, 
Petitioners and Plaintiffs, 

v.
COUNTY OF ALAMEDA; BOARD OF 
SUPERVISORS OF THE COUNTY OF 
ALAMEDA; DON EXCELL; CHARLES 
SANTANA; FRED F. COOPER;
JOSEPH P. BORT; JOHN GEORGE; 
REGISTRAR OF VOTERS OF THE COUNTY OF ALAMEDA; and 
DOES 1-20, inclusive,

Respondents and Defendants.

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) No. 583547-4
)) MEMORANDUM OF POINTS AND 
) AUTHORITIES IN SUPPORT OF 
) MOTION FOR PEREMPTORY ) WRIT OF MANDATE 
)) HEARING:
) August 14, 1984
) 2:0 0 p.m.) Department 1
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)

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Page

TABLE OF CONTENTS
Table of Authorities ..................................
I. INTRODUCTION......................................
II. JURISDICTION................................ .
III. STATEMENT OF THE CASE.............................

A. PROCEEDINGS TO DATE..........................
B. STATEMENT OF FACTS...........................

1. Background..............................
2. The 1981 Redistricting..................
3. Recent Electoral History of District 3. .
4. Preparations for 1983 Redistricting,

June through August, 1983...............
5. The 1983 Redistricting, September

through October, 1983...................
6. Impact of 1983 Redistricting............
7. Subsequent History of the

1983 Redistricting......................
IV. SUMMARY OF ARGUMENT...............................
V. ARGUMENT..........................................

A. AN ELECTORAL SYSTEM OR PRACTICE THAT 
SIGNIFICANTLY IMPAIRS THE RIGHT TO VOTE
OF A RACIAL MINORITY IS SUBJECT TO "ACTIVE 
AND CRITICAL" JUDICIAL SCRUTINY..............

B. A REDISTRICTING PLAN THAT REDUCES MINORITY
VOTING STRENGTH IS PROHIBITED BY THE GUARANTEE OF EQUAL PROTECTION OF THE LAWS..............

C. THE 1983 REDISTRICTING VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE CALIFORNIA CONSTI­
TUTION BECAUSE IT HAS THE VOTING EFFECT OF 
REDUCING BLACK VOTING STRENGTH........... .. .
1. A Violation of Equal Protection of the

Laws is Established' by a Showing that the 
1983 Redistricting Plan Has the Effect of Reducing Black Voting Strength. .

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2. The 1983 Redistricting Plan Has the Effect 
of Reducing Black Voting Strength in 
Violation of the California Constitution. . 40

D. THE 1983 REDISTRICTING PLAN WAS INTENDED TO 
DILUTE BLACK VOTING STRENGTH IN VIOLATION- OF 
THE CALIFORNIA CONSTITUTION.................... 4 3
1. The Arlington Heights Standard............  43
2. Application of the Arlington Heights

Standard..................................  44
a. Substantive Irregularities............  44(i) The decision to redistrict

in 1983.........................  45
(ii) The manipulation of population. . 47
(iii) The "uncouth configuration"

of new District 3...............  51
b. Procedural Irregularities.............  52
c. Historical Background and the

Specific Sequence of Events...........  55
d. Legislative History...................  59

D. RESPONDENTS' EXPLANATIONS FOR THE 1983 
REDISTRICTING DO NOT JUSTIFY DENIAL OF 
THE CONSTITUTIONAL RIGHTS OF BLACK
RESIDENTS OF DISTRICT 3........................ 63
1. Respondents Bear the Heavy Burden of 

Demonstrating That the 1983 Redistricting 
Is Necessary to Achieve a Compelling
State Interest............................ 63

2. None of Respondents' Rationalizations
Constitutes Either a Compelling State 
Interest or Is Necessary to Achieve a 
Compelling State Interest.............. 65
a. Respondents' Explanation of the

1983 Redistricting................. 65
b. The Interest in Equalizing Population . 66c. The Interest in Dispersing

Unincorporated Residents........... 66
d. The Interest in Preserving the

Historical Numbering of the Districts . 71
e. The Interest in Maintaining

Communities of Interest........... 72
f. The Interest in Enhancing Black

Voting Strength...................  76
g. The Support of Black Politicians. . . .  79h. Whether the Redistricting Would 

Have Occurred in the Absence of^
a Discriminatory Purpose........... 81

VI. CONCLUSION....................................... 84

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TABLE OF AUTHORITIES

Cases
Abate v. Mundt, 403 U.S. 182 (1971) .............■ 47
American Federation of State Employees

Local 685 v. County of Los Angeles,
146 Cal.App. 3d 879 (1983) ...................... 37

Anderson v. Celebreeze, __ U.S. __,
103 S.Ct. 1564 (1983) .........................  43

Assembly v. Deukmejian, 30 Cal.3d 638 (1982) ........  39
Blair v. Pitchess, 5 Cal.3d 258 (1971) .............. 5
Brown v. Board of Education, 347 U.S. 483 (1954) .... 33
Burns v. Richardson, 384 U.S. 73, (1966) ............  38
Buskey v. Oliver, 565 F.Supp. 1473 (M.D. Ala. 1983) .. 35,80
Calderon v. City of Los Angeles, 4 Cal.3d 251 4,34,36,41

(1971) .......................................  45,66,78,79
Castenada v. Partida, 430 U.S. 482 (1977) ......... 81
Castorena v. City of Los Angeles, 34 Cal.App.3d 901

(1973) .......................................  35,37
Castro v. State of California, 2 Cal.3d 223

(1970) .......................................  32,63,64,66
Choudhry v. Free, 17 Cal.3d 660 (1976)   32
Citizens Against Forced Annexation v. Local Agency

Formation Commission, 32 Cal.3d 816 (1982) ......  70
City of Mobile v. Bolden, 446 U.S. 55 (1980) .......  38
Committee to Defend Reproductive Rights v. Myers. 

29 Cal.3d 252 (1981), appeal dismissed.456 U.S. 941 (1982) .......................
Crawford v. Board of Education, 17 Cal.3d 280

(1976) ........................................  37
Curtis v. Board of Supervisors, 7 Cal.3d 942

(1972) ................   32,34
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......  51
Gould v. Grubb, 14 Cal.3d 661 (1975) .............. 4,32,34,37

41,70,83
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Howard v. Adams County, 453 F.2d 455 (5th Cir.)
cer t. denied, 407 U.S. 925 (1972) ............. 38

Jackson v. Pasadena City School District,
59 Cal.2d 876 (1963) ........................ 33,36,37

Kirksey v. Board of Supervisors, 554 F.2d 139 
(5th Cir.) (en banc), cert, denied,
434 U.S. 968 (1977) ........................... 35,38,69

Larry P. v. Riles, 84 D.A.R. 398 (1984) ............ 37
Legislature v. Reinecke, 6 Cal.3d 595 (1972)........ 4,83
Mahan v. Howell, 410 U.S. 315 (1973) ............... 47
McWilliams v. Escambia County School Board,

658 F. 2d 326 (5th Cir. 1981) .................. 81
Moore v. Leflore County Board of Election

Commissioners, 502 F.2d 621 (5th Cir. 1974) ___ 59
Reynolds v. Sims, 377 U.S. 533 (1964) .............. 32,33
Rogers v. Lodge, 458 U.S. 613, __, (1982) .......... 43
Robinson v. Commissioners Court, 505 F.2d 674 35,38

(5th Cir. 1974)   49,50,59
Rybicki v. State Board of Elections, 574 F.Supp.

1082 (N.D.I11. 1982)   35,49,64,82
Serrano v. Priest, 5 Cal.3d 584 (1971) ............. 32,37,39
Serrano v. Priest, 18 Cal.3d 728 (1976),

cert, denied, 432 U.S. 907 (1977) ............. 39
Tinsley v. Palo Alto Unified School District,

91 Cal. App. 3d 871 (1979) ...................... 39
United States v. Carolene Products Co.,

304 U.S. 144 (1938)   33
Village of Arlington Heights v. Metropolitan 43,44,59

Housing Development, 429 U.S. 252 (1977) ......  62,64,81
Wenke v. Hitchcock, 6 Cal.3d 746 (1972) ............  4
Westbrook v. Mihalv. 2 Cal.3d 765 (1970), 32,33,34

cert, denied, 403 U.S. 922 (1971) .............  63,64,66
Whitcomb v. Chavis, 403 U.S. 124 (1971) ............  38
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............  32

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Statutes
Article 1, § 7 of the California Constitution
Code of Civil Proc. § 1085 .................
Elections Code § 35000 ej: seq...............
Alameda County Charter, Section 7 ..........

Article
Karst, The Costs of Motive-Centered Inquiry, 

15 San Diego L. Rev. 1163 (1978) ......

pass iro 
5

passim
52,68

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I. INTRODUCTION.
This action challenges the legality of Ordinance 

No. 83-077, adopted by the Alameda County Board of Supervisors 
on October 11, 1983. The ordinance altered the boundaries of 
the five supervisorial districts of Alameda County, ostensibly 
to achieve population equality among those districts as 
permitted by Elections Code § 35003. Petitioners and 
plaintiffs, Glinnes Goodwin and Fran White, who are black 
residents, registered voters, and taxpayers in the City of 
Oakland, assert that Ordinance 83-077 ("the 1983 Redistricting 
Plan") fractures portions of the black population in District 3 
between Districts 3 and 4, and thereby reduces the strength of 
their vote. This discriminatory vote dilution deprives them of 
their right to an equal and undiluted vote as guaranteed by the 
equal protection clause of the California Constitution.

As further explained in Section III, infra, the 1983 
Redistricting Plan radically altered the boundaries of 
District 3, where many black voters reside, by eliminating 
predominantly black Oakland neighborhoods and adding in virtu­
ally all-white areas from other districts. As a result of 
redistricting, the black population of District 3 dropped from 
93,363 to 71,587 and the white population rose from 85,663 to 
118,865, a net loss of about 22,000 blacks and a net gain of 
about 33,000 whites. The consequence of this plan was to reduce 
the black population of District 3 from a plurality of 42% to 
31%, and increase the white population from 38% to a new 
majority of 52%. The bottom line is that over a fifth of the 
black population was lost and the white population increased by

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almost 40%. The elaborate exchange of voters between District 3 
and adjacent districts was wholly unnecessary to any legitimate 
goal of equalizing population among districts, since this 
purpose could have been accomplished by relatively'simple 
adjustments of district lines involving small net population 
changes. Moreover, the exceedingly suspect circumstances of its 
adoption indicate that the redistricting was the product of 
deliberate and purposeful racial discrimination.

Under the California Constitution, a plaintiff can 
establish a violation of the guarantees of equal protection by 
proving that a law has a discriminatory impact on a racial 
minority. As fully briefed in Section V, infra, the fracturing 
of District 3's black voters between two districts has the 
effect of diluting the strength of their votes in violation of 
the constitutional requirement of equal protection. In 
addition, petitioners also demonstrate that the 1983 
Redistricting Plan further denies equal protection of the laws 
because it was intended to reduce the voting strength of blacks 
within District 3. Moreover, respondents' purported 
justifications for the Plan are without legal merit and 
inadequate in light of the severe impairment that the Plan works 
upon petitioners' fundamental constitutional rights.

Petitioners seek to correct the invidious reduction of 
their previously established voting strength within District 3, 
and, therefore, respectfully request that this court issue a 
peremptory writ of mandate directing the Board to rescind the 
discriminatory redistricting scheme and either return to the 
pre-existing district boundaries or adopt a constitutionally

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valid plan that does not fracture black areas or otherwise 
reduce black voting strength.

II. JURISDICTION.
The California courts have traditionally reviewed 

voting and election cases on a petition for writ of mandate 
because such challenges generally present issues of substantial 
and immediate public importance and seek relief in the form of 
an order directing a legislative or administrative body to 
comply with the requirements of law. See, e.g., Gould v. Grubb, 
14 Cal.3d 661 (1975); Wenke v. Hitchcock, 6 Cal.3d 746, 751 
(1972); Legislature v. Reinecke 6 Cal.3d 595 (1972); Calderon v. 
City of Los Angeles, 4 Cal.3d 251 (1971). Mandamus is likewise 
the appropriate remedy in this action because petitioners seek 
to compel respondent Board to comply with its mandatory legal 
duty to adopt a redistricting plan in conformance with the 
requirements of the California Constitution.—^ The remedy that 
they seek is a recission of the illegal redistricting of 
District 3, and either a return to the pre-existing boundaries 
or the adoption of a valid plan for District 3 and adjoining 
districts that ensures the right of all voters to an equal and 
undiluted vote. Monetary damages would not provide an adequate 
substitute for the valuable right forfeited or restore legal

— While the initial decision whether to redistrict 
pursuant to Elections Code § 35003. is within the Board's 
discretion, once that decision is made, the Board is under a 
mandatory legal duty to adopt a plan that conforms^to the 
requirements of the state constitution. Thus, a writ of mandate 
can properly be issued in this action.

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supervisorial boundaries to within the County. Petitioners thus 
have no adequate legal remedy to correct respondents' action, 
and therefore proceed by means of an action for mandamus.

Petitioners have a beneficial interest in respondents' 
actions with respect to redistricting because the ordinance 
directly and materially impairs the worth of their vote in 
future supervisorial elections. Petitioners' standing to sue is 
based on that injury as well as on the broader injury they 
suffer as taxpayers. The adoption by the Board of a 
redistricting plan in violation of state law results in the 
illegal and wasteful expenditure of public funds for which any 
county taxpayer may seek redress. Blair v. Pitchess, 5 Cal.3d 
258, 267 (1971).

Before filing suit, petitioners, by their attorneys, 
made a demand upon the Board to rescind the 1983 Redistricting 
Plan and to adopt a constitutionally valid plan. Petition 
for Writ of Mandate and Complaint for Declaratory and Injunctive 
Relief (hereinafter "Petition") at 1[ 23. The Board has refused 
to adopt a new plan, _id, and continues to ignore its clear and 
present legal duty. Pursuant to its authority under Code of 
Civil Proc. § 1085, this Court is empowered to direct respondent 
Board to promulgate a redistricting plan that complies with the 
California Constitution.

III. STATEMENT OF THE CASE.
A. PROCEEDINGS TO DATE.

This action was commenced on March 30, 1984 with the 
filing of a petition for writ of mandate and complaint for

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declaratory and injunctive relief by two black residents, 
taxpayers, and registered voters of the third supervisorial 
district of Alameda County. The Petition challenged the 
redistricting plan adopted October 11, 1983 and sought relief 
against the entities and officials responsible for County 
elections, i.e., the County; the Board of Supervisors; the 
individual Board members; the Registrar of Voters; and 20 
fictitiously named DOES.

The County's Return and Answer (hereinafter "Return") 
was filed by all the respondents and defendants other than John 
George on May 4, 1984. The Return (a) admits certain factual 
allegations, including those concerning the racial impact of the 
redistricting on District 3, while denying others, and denying 
liability; and (b) states various reasons why the redistricting 
of District 3 was salutory and dictated by reapportionment 
decisions involving other supervisorial districts. The County 
also raises an affirmative defense of laches against judicial 
relief for the June election, which is now moot.

Prior to the filing of respondents' Return, 
petitioners commenced expedited discovery through depositions 
and requests for production of documents.The County has 
served interrogatories and requests to admit that were answered 
on June 20th.

- The depositions of Supervisors Excell, Santana, 
Cooper, and Bort, County Planning Director William Fraley, and 
Supervisor Cooper's legislative assistant, Charles Brown, have been taken. The transcripts of these depositions have been 
lodged with the Court. Excerpts of those portions of the 
depositions cited in this Memorandum are appended herewith.

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B. STATEMENT OF FACTS.
The material facts on which petitioners rely in 

support of this motion are established in the verified petition, 
admissions contained in the County's Return, deposition state­
ments of defendants and respondents and their employees or 
agents, documents supplied by respondents through the discovery 
process, and the public hearing transcript and declarations, 
appended herewith. No material facts are in dispute. Rather, 
this is a case that requires the Court to apply the equal pro­
tection clause of Article 1, § 7 of the California Constitution 
and authoritative case law to an uncontroverted record.

1. Background.
The Board of Supervisors is the legislative body of 

the County of Alameda. The Board consists of members elected 
from five geographic districts for staggered terms of four 
years. Petition at 1[ 11.

Prior to the 1983 redistricting, the total population 
of the County was approximately 1,145,117. Exhibit 16 of Fraley 
Deposition (hereinafter "Fraley Exh. 16"). District 1, 
represented by Don Excell, consisted of Pleasanton, Livermore, 
almost all of Fremont, Dublin, and an unincorporated population 
of 7,622. ^d. See Map 1, attached herewith. District 2,
represented by Charles Santana, was composed of Newark, Union 
City, a small part of Fremont (4,840), Hayward, and a large 
unincorporated population of 59,599. Id. District 3, 
represented by Fred Cooper, consisted of all of the City of 
Alameda and a large portion of the City of Oakland. Id.

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District 4, represented by Joseph Bort, was composed of San 
Leandro, Piedmont, a portion of Oakland, and a 47,169 
unincorporated population. Id. District 5, represented by John 
George, consisted of north Oakland, Berkeley, Albany, and 
Emeryville. Id.

Oakland residents within District 3 comprised 
approximately 154,000 persons, 70% of District 3's total 
population. Id. Alameda residents, approximately 66,385 
persons, represented the other 30% of the District's total. Id- 
The City of Oakland was divided between three districts: 44% of
its residents lived within the boundaries of District 3, 29% in 
District 4, and 27% in District 5. Id-

Prior to the 1983 redistricting, District 3 
encompassed parts of the City of Oakland that include 
predominantly black neighborhoods. Petition at K 13.
District 3, in fact, had the largest black population of the 
five supervisorial districts, both as an absolute number (93,363 
persons) and as a proportion of district population (42.3%).—^ 
Id. Ninety-seven percent of District 3's black population lived 
in Oakland, and 3% in Alameda. See Watson Declaration at U 7; 
Fraley Exh. 4; Fraley Exh. 16. In contrast, 60% of District 3's 
white population lived in Alameda, and 40% in Oakland. Id.

- Petitioners calculate the racial breakdown in 
District 3 prior to the 1983 redistricting based upon the 
Alameda County Planning Department's total District 3 population 
figure as of August 22, 1983, Fraley Exh. 16, and the racial 
percentages for each district contained in the Planning Depart­
ment's letter to Supervisor Cooper, March 11, 1983* Fraley 
Exh. 4. The 1980 U.S. Census racial percentages are the only 
available breakdown of population by race. Fraley Exh. 33.

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Since 1970, District 3 has been represented by 
Supervisor Cooper. Cooper deposition (hereinafter "Depo."), 
pp. 2-3. Supervisor Cooper, who is white, resides in Alameda 
and maintains his law office in Alameda. Id.

2. The 1981 Redistricting.
The last reapportionment of supervisorial districts in 

Alameda County prior to the 1983 redistricting occurred on 
August 25, 1981. Fraley Exh. 10 (Ordinance 81-64); Bort Depo., 
p. 4; Cooper Depo., p. 3. Immediately before that 1981 
redistricting, the County Planning Department estimated the 
County's population at 1,112,362, so that an ideal population 
for each supervisorial district was 222,472. Fraley Exh. 2 
(letter dated July 29, 1981 to Board members from Planning 
Director Fraley). The percentage difference in population 
between the smallest and the largest district was 11.3%.—/

On August 25, 1981, Supervisor Bort moved that the 
same districts be maintained except for certain minor technical 
changes because the population was not sufficiently out of

- The Board was required to use then-current State 
Department of Finance statistics to redistrict, rather than 1980 
U.S. Census statistics. See Fraley Exh. 2; Fraley Exh. 13 
(letter dated April 16, 1981 of County Counsel to Supervisor Bort) .

The percentage difference in population between the 
smallest and largest districts, is calculated by ascertaining 
the amount by which the smallest and largest districts are 
respectively under and over the ideal population, adding 
together these two figures and dividing the resulting sum by the ideal population.

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balance. Public Hearing Trans, at 5;-^ Fraley Exh. 10; Bort 
Depo., pp. 28-29. The motion passed 4-1. Fraley Exh. 10.—^
The 1981 redistricting, in fact, did not result in any 
significant population equalization. See Fraley Exh. 7 (letter 
of June 11, 1982 to Supervisor Cooper from Planning Director 
Fraley stating that then current population of the supervisorial

- Petitioners have appended transcriptions of the public 
hearing held by the Board on October 4, 1983, and a portion of 
the Board meeting held on October 11, 1983 as Attachment A. See Declaration of Christina Concepcion.

6 /— On April 16, 1981, the County Counsel specifically 
advised the Board of the mandatory requirement of Elections Code § 35000 that redistricting for the purpose of population 
equalization must be completed by November 1, 1981. Fraley 
Exh. 13. The County Counsel stated that Elections Code § 35000 
"requires that the population of the districts be as equal as 
possible," but noted that recent United States Supreme Court 
decisions indicated that "some deviation from the equal 
population requirement can be tolerated if found to be justified 
by legitimate considerations incident to the effectuation of a rational policy." The letter continues:

[i J t is impossible to state what amount of deviation 
would be found permissible. The Supreme Court has 
upheld percentages of 7.8, 9.9, 11.9, and 16.4, but as 
the court itself put it, "Neither courts nor Legisla­
tures are furnished any specialized calipers that 
enable them to extract from the general language of 
the Equal Protection Clause of the Fourteenth Amend­
ment the mathematical formula that establishes what 
range of percentage deviations is permissible, and what is not."

Fraley Exh. 13. A month later, County Counsel provided an 
extensive analysis of the relevant authorities at the request of 
Supervisor Cooper. Cooper Exh. 4 (attached May 14, 1981 letter 
memorandum to Supervisor Cooper from County Counsel Moore).

The respondents assert that "the 1981 redistricting 
was not a reapportionment designed to equalize the population of 
the supervisorial districts, but was comprised rather of minor 
changes to district boundaries designed to bring them into 
conformity with election precincts for the convenience of the Registrar of Voters." Return at 1| 2.

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districts is set forth in July 29, 1981 letter, produced prior 
to 1981 redistricting); Public Hearing Trans, at 5

3. Recent Electoral History of District 3.
In 1978, Leo Bazile, a black Oakland resident, 

challenged Supervisor Cooper for his seat in District 3. Cooper 
retained his seat, winning 58.1% of the vote (25,451) to 
Bazile's 41.9% (18,341). Cooper's margin of victory was 7,110 
votes. See Exhibit A to Atkins Declaration.

In the 1982 District 3 election, Sandre Swanson, a 
black candidate from Oakland, and C.J. "Chuck" Corica, a white 
candidate, opposed Cooper. Petition at K 13. Swanson received 
37.6% (14,361) of the votes cast, Cooper received 31.5%
(12,018), and Corica received 30.9% (11,776). Id. Because the 
County requires a majority vote for election, a run-off was held 
between Swanson and Cooper in November 1982. Id. In that

7/ In 1981, District 3 Supervisor Cooper voted aqainst the redistricting because he favored more extensive 
redistricting but was unable to convince other board members Fraley Exh. 10; Cooper Depo., p. 83; Excell Depo., Vol. 1, np 
9-10. County Planning Department records show that Supervisor 
Cooper specifically requested racial data for the 1950, I960 and 
1970 census during the consideration of the 1981 redistrictinq 
S£e Fraley Exh. 11 (letter dated March 19, 1981 to Supervisor Cooper from Planning Director Fraley.)

These data show that the black population of the County has always been concentrated in Oakland, that the 
population of Oakland declined from 384,575 in 1950 to 361 561 
iD that the black population of Oakland increased47,562 in 1950 to 83,618 in 1960 to 124,710 in 1970 Id (The 
?d Y Wi£h significant black population v^s Birkeley.)Id. On the other hand, the population of Alameda, which consti-

Part °f District 3' remained stable between 1950 (64,430) and 1970 (70,968), and over 90% white. Id.

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district run-off election, Cooper received 52.6% (28,634) and 
Swanson received 47.4% (25,770) of the votes cast. Cooper's 
margin of victory was only 2,864 votes.

An analysis of the 1982 District 3 election returns 
shows that 93 of 97 Oakland precincts were won by Swanson in the 
June election, and that 88 of 97 Oakland precincts were won by 
Swanson in the November 1982 run-off. See Watson Declaration at 
1MI 3, 4. Cooper, on the other hand, carried all 47 Alameda 
precincts in November. Id. Eighty-eight of the 93 total 
precincts carried by Swanson in the June election were majority 
black or majority non-white. Id. Eighty-four of the 88 total 
precincts carried by Swanson in the November election were 
majority black or majority non-white. JU3. Forty-nine of the 
total 56 precincts carried by Cooper in November 1982 election 
were predominantly white. Id.

In February or March 1983, several months after the 
November 1982 run-off and prior to any official consideration of 
redistricting by the Board, Supervisor Cooper requested that the 
Planning Department provide him with a breakdown of population 
in each supervisorial district by race and Spanish origin. 
Petition at 1| 14; Return at 1[ 3. The Planning Department 
provided these estimates to Cooper on or about March 11, 1983 
with copies to the other members of the Board. ][d. The 
Planning Department's estimates, based on 1980 census data, 
revealed the following racial population data:
/
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Dist. Total White Black
Am. Indian 
Eskimo & 
Aleut.

Asian & 
Pacific Islander Other

1 231,786 203,487
(87.8%)

4,960
(2.1%) 1,606

(0.7%) 11,277
(4.9%) 10,456(4.5%)

2 227,981 168,764
(74.0%)

12,245
(5.4%) 2,053

(0.9%) 21,127
(9.3%) 23,792

(10.4%)
3 214,622 83,309

(38.8%)
90,789
(42.3%) 1,729

(0.8%)
20,824
(9.7%) 17,971

(8.4%)
4 218,917 171,099

(78.1%)
24,499
(11.2%)

1,074
(0.5%) 14,820

(6.8%) 7,425(3.4%)
5 212,073 113,952

(53.7%)
71,120
(33.5%)

984
(0.5%)

17,851
(8.4%)

8,166
(3.9%)

TOTAL: 1,105,379 740,612
(67.0%)

203,612
(18.4%) 7,446

(0.7%) 85,899
(7.8%) 67,810

(6.1%)
Fraley Exh. 4 (Spanish origin <omitted)^

4. Preparations for 1983 Redistrictinq, June through 
August, 1983.

On June 28, 1983, the Board considered the subject of 
supervisorial redistricting as an off-agenda item, and requested 
a report on district population from the Planning Director. 
Return at K 18; Fraley Exh. 8. Planning Director Fraley 
responded on July 15th with tables of the 1980 and 1983 
supervisorial district populations and deviations from ideal 
population. Return at 1[ 19. The 1983 table showed that the 
total county population had increased to 1,145,117; the ideal 
population for each district was now 229,023. Fraley Exh. 14.

— The Planning Director could recall only that 
Supervisor Cooper requested racial data from the Planning 
Department. He could not recall any other supervisors seeking such information. Fraley Depo., pp. 40-41.

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= 5

Since 1981, the percentage deviation between the largest and 
smallest districts, had increased 0.3% from 11.3% in 1981, see 
supra at p. 9, to 11.6% in 1983.—^ Supervisors Bort and George 
did not believe that the population deviation was sufficient to 
justify redistricting. Bort Depo., pp. 43-45; Public Hearing 
Trans, at 6; George Decl., K 3a. The other Board members wanted 
to proceed with redistricting.

On July 1st, the Clerk of the Board asked the Planning 
Director to assist in scheduling a public hearing in three or 
four weeks. Fraley Exh. 8. Two weeks later, the Planning 
Director recommended that "such a hearing date be set at the 
pleasure of the Board members." Fraley Exh. 14. No hearing was 
set until final Board proposals were developed two months later.

On August 2nd, the Board named District 1 Supervisor 
Excell as liaison between the Board and the Planning Director on 
supervisorial redistricting. Fraley Exh. 15.— ^ As liaison, 
Supervisor Excell was to give the Planning Director the Board's 
proposals for redistricting so that the Planning Department 
could prepare maps and determine the population impact of

- The Planning Department's July 15th report to the 
Board included 1980 U.S. Census statistics, which show a per­
centage deviation between the largest and smallest districts of 
8.9%. When these figures are compared with the 1981 figures 
contained in Fraley Exh. 14, it demonstrates that most of the 
2.7% increase in deviation between 1980 and 1983 occurred prior 
to the 1981 redistricting. The Planning Department did not 
provide the Board with the January 1981 State Department of 
Finance statistics upon which the 1981 redistricting, in fact, was based.

^7^ Supervisor Cooper made the motion. Fraley Exh. 15. 
Supervisors Cooper, Santana and Excell voted in favor of the 
appointment; Supervisor George was excused, and Supervisor Bort abstained. Id.

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proposals. Excell Depo., Vol. 1, pp. 3-5. Each of the super­
visors was to make decisions about the redistricting of his own 
district, Bort Depo., pp. 20-21, Excell Depo., Vol. I, p. 37, 
Vol. II, p. 37, and to obtain the consent or acquiescence of 
supervisors of adjoining districts. The Planning Director 
played no role in preparing proposals, did not comment on alter­
natives, and made no judgments as to the propriety or legality 
of the Board's proposals. Fraley Depo., pp. 57-58, 84. No 
outside advisory or study commission or group played any role in 
the deliberations that went into preparation of the Board's 
proposals.

Supervisor Excell determined the redistricting to be 
done in District 1, i.e., areas to be transferred to other 
areas, and ascertained from each of the other supervisors, 
except Supervisor George,— ^ what he wanted as to redistricting 
of his own district. Excell Depo., Vol. I, pp. 4-5, Vol. II, 
pp. 37-39. Supervisor Excell recalled that Supervisor Cooper 
and he were the most interested in reapportionment. Id.,
Vol. II, p. 34. Planning Director Fraley recalls that Brown, 
Cooper's legislative aide, was the only legislative aide to 
contact him regarding the 1983 redistricting. Fraley Depo., 
pp. 65-71. Brown gave Excell a map or maps about the proposed 
redistricting of District 3, and the proposed resulting modifi­
cations of Districts 2 and 4. Excell Depo., Vol. II, pp. 42-44.

11/—  District 5 Supervisor George, the only black 
supervisor, opposed redistricting and did not discuss any 
redistricting proposals concerning District 5 with^any other supervisor. George Decl. at 11 3.

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5. The 1983 Red istricting, September through 
October, 1983.

No redistricting proposal was released until September 
1983. Fraley Exh. 20. On September 19, 1983, Supervisor Excell 
transmitted to Planning Director Fraley a proposed redistricting 
map with tentative district boundary lines shown in green 
("green-line map"). Brown Exh. 9. This green-line map had been 
prepared by Supervisor Cooper's aide, Charles Brown. Brown 
Depo., pp. 72-75, 90. The next day, Brown sent to Excell a 
memorandum with population estimates for each of the proposed 
green-line districts. Excell Exh.l.— '' The memorandum, which 
stated that the ideal or "optimum district size" was 229,000, 
showed that the green-line map proposed districts with the 
following population breakdown:

District Population

Id.

1 235,535
2 230,541
3 229,804
4 232,120
5 217,000

The green-line map shows that, starting with an 
original District 3 population of 221,000, a total of 41,784

12/—  A similarly worded memorandum with identical numbers 
and a total county population figure was prepared the same day 
under Planning Director Fraley's name and transmitted to Excell. 
See Fraley Exh. 20. The Fraley version of the green-line 
numbers was distributed to the Board on September 23rd. Excell Exh. 6.

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persons
persons
persons
to Distr
Leandro
District

would be removed from Di 
in the East Oakland Banc 
in the East Oakland Lake 
ict 4.— ^ At the same t 
census tracts— ^ would 
4, and 27,314 persons

strict 3, including 7, 
roft census tracts and 
Merritt census tracts 
ime, 23,274 persons in 

be added to District 3 
from two unincorporated

119
34,665 
and added 
the San 
from 
areas,

— ^ EAST OAKLAND TRACTS TO BE TRANSFERRED TO DISTRICT
Census Tract Total White Black Other
Lake Merritt

034 3351 1888 800 663052 4657 2270 783 1604053 4906 2576 968 1362054 6210 1356 3163 1691055 3433 876 1585 972056 3228 861 1393 974057 3149 710 1903 536058 3529 503 2329 697064 2202 956 892 354Total 34,665 11,996 13,816 8853

Bancroft
097 4470 393 3835 242102 2649 571 1902 1767119 964 5737 418

Fraley Exh. 20 , Exh. 21 I-J.
±4/ SAN LEANDRO TRACTS TO BE TRANSFERRED TO DISTRICT 3

Census Tract Total White Black Other
324 4619 3802 102 715333 6571 5657 37 877334 2948 2365 65 518335 4142 3745 11 386336 4994 4390 63 541Total 23,274 19,959 278 3037

Fraley Exh. 20, Exh. 21 I-J.

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\5

Ashland and Cher r y l a n d ^  would be added to District 3 from 
District 2. The net result of these proposed changes would be a 
District 3 population estimated at 229,804. Fraley Exhs. 20,
21 I-J. The green-line map also shifted two census tracts along 
the southern boundary of District 4 back into District 2, 
despite the need to relieve District 2 of surplus population.—  ̂
The tentative map contemplated no change in District 5, the most 
underpopulated district. Id.

On September 20th, Supervisor Excell submitted to the 
Board the green-line map for formal review and comment as an 
off-agenda item and a public hearing was set for two weeks 
later, October 4, 1983. See Fraley Exh. 22. On September 21st, 
certain public officials were notified, through a letter from 
the County Administrator, of the Board action of the previous 
day. Fraley Exh. 22. Attached to the cover letter were maps of

— ^ DISTRICT 2 UNINCORPORATED TRACTS TO BE TRANSFERRED TO DISTRICT 3 —— ----------
Census Tract Total White Black Other338 4763 3984 80 699339 3908 2996 229 683357 900 (part -Planning Dept. estimate358 4535 4050 24 461359 4899 4372 22 505360 4208 3789 18 401361 4101 3634 20 447Total 27,314 22,285 393 3196

Fraley Exh. 20, 21 I-J.

only)

16/ DISTRICT 4 TRACTS TO BE TRANSFERRED TO DISTRICT 2
Census Tract Total White Black Other311 2926 2715 56 155312 4464 4011 112 - 341Total 7390 6726 168 496
Fraley Exh. 20, 21 I.

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the current districts, the September 19th preliminary map and 
the Planning Department's population data for both maps. This 
was the first public notice that the Board was considering a 
specific proposal for redistricting. Although "input" from the 
officials was "welcome," the cover letter did not invite alter­
native proposals or state that any would be considered. Id.— ^

Thereafter, on September 28th, the County Admini­
strator sent out a notice to various local officials reiterating 
the October 4th hearing date and attached two other maps, Map A 
and Map B. Fraley Exh. 24. The letter stated that, "The Board 
wants your input on how to achieve greater equality of 
population within each district, while continuing to reflect 
other concerns involved in establishing district boundaries."
Id. Map A was characterized as "a refinement of the map you 
received previously" (i.e., the green-line map) and Map B as a 
variant of Map A. J[d. The population estimates for the 
districts set forth in Maps A and B were both closer to ideal 
population than the original green-line proposal. See id.

Two days later, on September 30th, the Planning 
Director transmitted to the Board a revised Map A and Map B, 
Fraley Exhs. 35 and 36, in which "some minor adjustments" were

17 /—  Supervisor Cooper testified in deposition that he and 
his legislative aide, Charles Brown, held a meeting on 
September 26, 1983, with certain invited black "community" 
members. The meeting was not open to the public. At the 
meeting, Supervisor Cooper and his aide presented as redistrict­
ing options, the green-line map (or a plan similar to the green­
line map) and a plan in which the greater part of San Leandro 
would be transferred into District 3 and more of East Oakland 
would be moved into District 4 than under the green-line map.
The consensus of the meeting was that the green-line map was 
preferable to the latter alternative. Cooper Depo., pp. 27-29.

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If 5

made to Maps A and B "as a result of refining figures and to
reflect election precinct lines." Fraley Exh. 25. Revised 
Maps A and B were not made public until October 4th. See id.

The basic changes proposed for District 3 in the 
September 19th green-line map were carried forward into the 
revised Map A. The most substantial differences were (1) two 
additional heavily black East Oakland-Bancroft census tracts 
were transferred from District 3 to District 4, and one less 
majority white Lake Merritt tract went from District 3 to

TO/District 4—  ; (2) an additional tract of unincorporated area
was transferred from District 2 to District 3— ;̂ and (3) three 
census tracts were moved into District 5.— ^ District 3's 
proposed population was estimated in revised Map A as 228,000.

18/ EAST OAKLAND TRACTS TO BE TRANSFERRED TO DISTRICT 4
Census Tract Total White Black Other

103 2914 348 2332 234
104 2966 630 2115 221

Total 5880 978 4447 455
Tract 034, majority white, was ultimately transferred from 
District 3 to 5, not District 3 to 4, as provided in the green­line map. See note 13, supra. Fraley Exh. 36.

19 /-- DISTRICT 2 UNINCORPORATED TRACTS TO BE TRANSFERRED TODISTRICT 3 --------
Census Tract Total White Black Other340 3161 2601 83 477
Fraley Exh. 36.

— / OAKLAND TRACTS TO BE TRANSFERRED TO DISTRICT 5
Census Tract Total White Black Other033 (from Dist.3) 1980 333 165 1482034 (from Dist.3) 3351 1888 800 - 663041 (from Dist.4) 5176 4318 303 555Total 10,507 6539 1268 2700
Fraley Exh. 36.

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Fraley Exh. 25. Revised Map B would have transferred all of San 
Leandro from District 4 to District 3 and would have transferred 
more of Oakland, including substantial black populations, from 
District 3 to District 4 than revised Map A proposed. Id.

Both the September 21st and 28th notices were sent, at 
the Board's direction, only to cities, chambers of commerce and 
the County's legislative delegation. Excell Exh. 8. Neither 
notice invited general public participation at the hearings and 
neither invited alternative proposals. Neither notice indicated 
the racial impact of the Board's redistricting proposals. 
Finally, neither notice disclosed that the Board was planning to 
vote on October 4th to adopt a redistricting proposal.

Four written responses to the September notices —  all 
from cities —  appear in the record. Excell Exh. 8. Three 
cities mentioned a previously-scheduled California League of 
Cities meeting occurring on the same day as the hearing 
(Hayward, San Leandro, Fremont). Of these, two asked for a 
continuance of the October 4 hearing because of the short notice 
and the pre-existing League of Cities meeting date (San Leandro, 
Fremont). San Leandro and Fremont both also expressed 
substantive objections to the proposed plans because the plans 
contemplated splitting each of these two cities between two 
supervisorial districts. The fourth city to respond, Albany, 
wrote that it had no comment on the plans because it was not 
affected by the redistricting.

On October 4, 1983, the Board held a brief public 
hearing, the only public hearing ever held on the redistricting 
issue, before introducing a slightly modified revised Map A for

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first reading and vote as Ordinance 83-077. At this hearing, 
virtually all speakers asked for more time for public partici­
pation and for the appointment of a citizen advisory committee. 
Public Hearing Trans., pp. 9-29. Specific questions were 
asked and comments were made about the proposed reduction in the 
black population of District 3. Jld. See text at p. 60-61, 
infra. A majority of the Board members have admitted that they 
knew beforehand that the Redistricting would have an impact on 
District 3's black population. See Cooper Depo., pp. 28-29,
Bort Depo., pp. 80-83, Santana Depo., pp. 22-23, George Decl.,
11 3. Nevertheless, the Board voted 4 to 1 to adopt revised
Map A without material change. Public Hearing Trans., pp. 51-

21/53.—  See Map 2, attached herewith. The one vote against

21/—  The initial vote was Supervisors Cooper and Excell in favor and Supervisors George and Santana opposed, with Bort ini- 
tiallY passing. Public Hearing Trans., pp. 51—52. Supervisor Bort and Supervisor Santana then changed their votes and revised Map A was adopted 4-1. JEd. at 52-53.

District 1 Supervisor Excell testified in deposition 
that either revised Map A or revised Map B was acceptable to him 
because both equalized population, provided unincorporated areas 
for District 3, and had the same impact on District 1. Excell 
voted for revised Map A because it had the support of other supervisors. Excell Depo., Vol. II, pp. 11-14.

District 2 Supervisor Santana testified that he was indifferent about whether there should be a redistricting, he 
had no specific political goals of his own, and he thought that balancing population and keeping cities intact were his only concerns. Santana Depo., pp. 6-8, 16, 46-47.

District 3 Supervisor Cooper testified that he erron­
eously believed redistricting was required by law, that the 
County was legally vulnerable to a- lawsuit in which a judge 
would redistrict the County if the Board did not redistrict, and 
that Assemblyman Harris had told him that he and Oakland Mayor 
Wilson were interested in East Oakland being moved to District 4 
in exchange for San Leandro. Supervisor Cooper stated that he

[Continued]

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revised Map A was cast by District 5 Supervisor George who had 
earlier in the debate expressed concern about the impact of 
revised Map A on blacks and had tried unsuccessfully to delay a 
vote and create a task force to study the matter. Id. at pp. 
42-44.— ^

It was not until October 7th, three days after the 
public hearing and initial adoption of revised Map A, that the 
Planning Department sent to the Board any information about the 
racial impact of revised Map A. This data, which was not made 
public, showed the following racial breakdown of the revised 
Map A districts:
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— / [Cont'd.]
voted for Map A because he wanted to preserve as much of Oakland as possible. Cooper Depo., pp. 10-13, 18-21, 83-86.

District 4 Supervisor Bort testified that he did not believe any redistricting was called for, but voted for revised 
Map A in order to avoid adoption of Map B by the Board. Bort Depo., pp. 99-100.

22/ At the hearing, Supervisor George presented a plan 
that attempted to avoid the fragmentation of Oakland areas with 
substantial black population by moving the entire East Oakland 
black community into District 4. Supervisor George felt that 
this was the only realistic way to preserve the integrity of the 
black community while accommodating Supervisor Cooper's desire to eliminate black voters from District 3. George Decl., 1f 5.

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Am. Indian Asian &
Eskimo & PacificDist. Total White Black Aleut. Islander Other

1 230,149 203,868
(88.6%) 4,515

(2.0%) 1,531
(0.7%) 10,056

(4.3%)- 10,079(4.4%)
2 229,499 167,308

(72.8%) 13,233
(5.8%) 2,000

(0.9%) 22,655
(9.9%) 24,303(10.6%)

3 228,753 118,865
(52.0%)

71,587
(31.3%) 1,824

(0.8%) 17,880
(7.8%) 18,597

(8.2%)
4 229,424 155,463

(67.8%)
45,931
(20.0%)

1,212
(0.5%) 18,001

(7.8%) 8,817
(3.8%)

5 227,292 122,943(54.1%) 73,891
(32.5%) 1,169

(0.5%) 20,530
(9.0%) 8,759

(3.9%)

Fraley Exh. 27, as corrected October 27, 1984 in Fraley Exh. 6 
(District 5 figures revised) (Spanish origin omitted)

Even though the Board had before it the precise racial 
data, it again voted in favor of revised Map A on October 11, 
1983. Public Hearing Trans., pp. 54-55. The ordinance went 
into effect 30 days later.
/
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23/—  The Planning Department derived the 1983_-racial 
statistics for supervisor districts by applying 1980 U.S. Census 
racial percentages to 1983 State Department of Finance statistics. Fraley Exh. 33.

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6. Impact of 1983 Redistricting.
As stated above, the racial composition of District 3 

before the 1983 redistricting, according to the U.S. Census 
Bureau and the Alameda County Planning Department, was as 
follows:

Race Percentage Number
Black 42.3
White 38.8
Asian 9.7
Native Amer. .8
Other 8.4

93,390
85,663
21,416
1,766
18,546

Total 100 220,781
Petition at H 18, p. 7. The racial composition of District 3 
after the 1983 redistricting, according to the Alameda County 
Planning Department, is as follows:

Race
Black
White
Asian
Native Amer 
Other
Total

Id. at U 18, p. 8.

Percentage
31.3
52.0
7.8
.8

8.2
100

Number
71,587118,865
17,880
1,824
18,597
228,753

The redistricting reduced District 3's black popula­
tion from 93,363 to 71,387, resulting in a net loss to 
District 3 of almost 23,000 black residents, or almost a quarter 
of the black population of the district, ^d. The percentage of 
blacks in District 3 dropped from approximately 42.3%, the 
largest black representation in any supervisorial district, to 
approximately 31.3% as a result of the redistricting. Id. The 
redistricting increased the white population of District 3 from 
85,663 to 118,865, resulting in a net gain to District 3 of

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approximately 33,000 white residents. While whites comprised 
only 38.8% of District 3's total population before redis­
tricting, District 3 emerged with a clear white majority of 
approximately 52%.

Redistricting resulted in substantial alterations in 
the racial composition of preexisting districts only in 
District 3, where the white proportion of district population 
increased 13.2% and the black proportion decreased 11.0%, and 
District 4, where the black proportion of district population 
increased 8.8% and the white proportion decreased 10.3%. In no 
other district did any racial or ethnic group's representation 
change more than 1.9%.— ^

The population growth that ostensibly necessitated 
adjustment of the supervisorial districts in 1983 had occurred 
in Districts 1 and 2 in the southern part of the County. Dis­
tricts 3, 4, and 5, located in the north County, each needed 
population added to them if population of the districts were to

— / The following table shows the percentage changeeach group's 
redistrictingrepresentation m  a district

Am. Indian 
Eskimo &

resulting
Asian & 
Pacific

from

District White Black Aleut. Islander Other
1 + 0.8 - 0.1 + 0.6 - 0.12 - 1.2 - 0.4 + 0.6 + 0.23 + 13.2 -11.0 - 1.9 - 0.24 -10.3 + 8.8 + 1.0 + 0.45 + 0.4 - 1.0 + 0.6 + 1.2

These percentage changes were calculated based upon the pre- 
redistricting racial breakdowns, see supra at n. 3, , and 
Planning Department post-redistricting figures, Fraley Exh. 4.

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f 5

be equalized. District 3 required an increase of approximately
8,000 residents. Petition at U 18, p. 8. Although both 
District 3 and District 4 required an increase in population to 
achieve population parity, twelve Oakland census tracts, seven 
with majority black populations, were transferred from Dis­
trict 3 to District 4,— ^ and five tracts, all at least 80% 
white, were transferred from District 4 to District 3.— ^ The 
transfer of black population from District 3 to District 4 
accounts for almost all the loss of District 3's black popula­
tion in the 1983 redistricting. See supra at nn. 13, 18, and 
20. The transfer of precincts between Districts 3 and 4 was 
fully half of all the precincts transferred from one 
supervisorial district to another under the 1983 redistricting. 
Petition at 18(b).

The 1983 redistricting resulted in District 3 taking 
on an uncouth configuration. J[d. at 1[ 18(d). Precincts were 
gouged out of two sections of District 3 adjacent to the eastern 
boundary between District 3 and 4, and moved to District 4. Id. 
In the southern part of District 3, precincts from San Leandro 
(a separate city) were split off from District 4 and added to 
District 3, and unincorporated areas from District 2 were added

25/— ' See supra at nn. 13 and 18. Seven of the 12 tracts 
had populations greater than 50% black and only one had a 
population greater than 50% white. Id. Of the remaining four 
majority non-white tracts, the black population was a plurality 
of the total tract population in two of these tracts. Id.

26/— ' See supra at n. 14. Not one of the five census tracts had a black population over 3%. Id.

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5

to District 3, including virtually all-white precincts that form 
a triangular island connected to District 3 by only a narrow 
corridor. Id.

7. Subsequent History of the 1983 Redistricting.
After the passage of Ordinance 83-077, a referendum 

petition protesting the adoption of the ordinance was circulated 
by District 3 residents. See Swanson Decl., H 7. A petition 
containing 41,225 signatures was timely filed on November 9, 
1983, within the 30-day period prescribed by Elections Code 
§§ 3751 and 3753. However, the Registrar of Voters found an 
insufficient number of valid signatures on November 23rd.

On November 21st, Oakland Mayor Lionel J. Wilson wrote 
Supervisor Excell protesting the redistricting, "which divides 
up the large minority population of East Oakland and substan­
tially disenfranchises some 60,000 East Oakland people," as a 
"blatant rape of the rights and interest of thousands of Oakland 
residents." Excell Exh. 17. In subsequent correspondence, 
Wilson stated that the redistricting plan "effectively disen­
franchises a substantial portion of the City of Oakland on the 
Board of Supervisors." Excell Exh. 18.— ^

27/—  Mayor Wilson's November 21st letter, in its entirety, states
I was shocked and truly disappointed to learn 

that you had joined with Fred Cooper to pass Ordinance 
No. 0-83-077 which divides up the large minority population of East Oakland and substantially 
disenfranchises some 60,000 East Oakland people.

Unfortunately, I have been out of the City from 
time to time recently and was, therefore, unable to

[Continued]

28



1 On December 6, 1983, a motion was introduced by
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Supervisor George, seconded by Supervisor Excell, to appoint a 
fifteen-person citizens commission to study redistricting of 
supervisorial boundaries. Cooper Exh. 10. The motion was 
rejected by a 3-2 vote. Supervisors George and Excell voted for 
the motion, and Supervisors Bort, Cooper, and Santana voted 
against. Id.

A second petition drive in support of an intitiative 
to overturn the redistricting was launched May 8, 1984 by a 
coalition of political, labor, and environmental leaders from 
several of the supervisorial districts. See Swanson Decl., V 7.
/

i

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— / [Cont'd]
become actively involved in the development to take 
the issue of county redistricting to the people 
(despite my strong aversion to government by 
initiative process). This blatant rape of the rights 
and interest of thousands of Oakland residents is 
certainly inconsistent with the seeming fair-minded, 
rational and objective Don Excel [sic] I had come to 
know and respect. Fred Cooper's actions are more 
readily understood within the context of "a drowning 
person reaching for a straw."

I do hope that some resolution of the issue is 
found that will effectively deal with this grave 
miscarriage of justice —  and although I am having all 
legal aspects researched, hopefully it won't have to 
be resolved through litigation.

Excell Exh.17.

ccllO# 5 29



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IV. SUMMARY OF ARGUMENT.
This case concerns an egregious and unjustified 

interference with the voting rights of a racial minority.
Because the right to vote is a fundamental right and the group 
subject to discrimination is a racial minority, the Court must 
subject the 1983 Redistricting to "active and critical" 
scrutiny.

A violation of the equal protection clause of 
Article I, § 7 of the California Constitution may be established 
either by demonstrating that the 1983 Redistricting has the 
effect of reducing minority voting strength or by proving that 
the Redistricting was purposeful racial discrimination. In the 
instant case, petitioners present undisputed evidence of both 
adverse impact and discriminatory purpose. The adverse impact 
of the 1983 Redistricting is clear and unequivocal: a substan­
tial reduction of black voting strength in District 3, such that 
over one-fifth of the black population was lost, and a nearly 
40% increase in white population. The existence of a clear 
discriminatory effect alone establishes respondents' liability 
under the state equal protection clause. Petitioners also 
demonstrate that the 1983 Redistricting process and outcome were 
the product of intentional discrimination. Disproportionate 
racial impact, substantive irregularities, procedural irregu­
larities, the historical background of the action, and the 
legislative history of the 1983 Redistricting, together 
establish that respondents' adoption of the redistricting plan 
was purposeful racial discrimination.
/

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Nor can respondents excuse or justify their actions. 
Respondents are unable to carry their heavy burden of showing 
that the 1983 Redistricting furthered a compelling governmental 
interest and that the Redistricting was necessary to further 
this compelling governmental interest. The various reasons 
advanced by respondents simply do not stand up to the rigorous 
analysis required by law.

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v . ARGUMENT.
A. AN ELECTORAL SYSTEM OR PRACTICE THAT SIGNIFICANTLY

IMPAIRS THE RIGHT TO VOTE OF A RACIAL MINORITY IS
SUBJECT TO "ACTIVE AND CRITICAL" JUDICIAL SCRUTINY.
The right to vote has traditionally been considered

the single most fundamental right, for it is the right with
which we preserve and protect all other basic civil and
political rights. Reynolds v. Sims, 377 U.S. 533, 560 (1964);
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). As a result, the
California Supreme Court, interpreting the state equal
protection clause, has held that any electoral system or
practice that significantly impairs the right to vote is subject
to "active and critical" judicial scrutiny. Westbrook v.
Mihaly, 2 Cal.3d 765, 785 (1970), cert, denied, 403 U.S. 922
(1971). See Choudhry v. Free, 17 Cal.3d 660, 664 (1976); Gould
v. Grubb, 14 Cal.3d 661, 670 (1975); Curtis v. Board of
Supervisors, 7 Cal.3d 942, 953 (1972); Castro v. State of
California, 2 Cal.3d 223, 234 (1970).

This rigorous standard of strict judicial scrutiny is
particularly important where the class of voters subject to an
impairment of their voting rights is a racial minority. Indeed,
strict scrutiny is independently required when it is a racial
minority that is subject to discrimination, because such a
minority is a suspect class that is accorded special protection
under the guarantees of the California Constitution. Serrano v.\ -
Priest, 5 Cal.3d 584, 597 (1971). It is now established that 
"prejudice against discrete and insular minorities" is "a 
special condition, which tends seriously to curtail the

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operation of those political processes ordinarily to be relied 
upon to protect minorities, and which may call for a 
correspondingly more searching judicial inquiry." United States 
v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Race is 
the classic instance of a group characteristic that defines such 
a "discrete and insular minorit[y]." E.g., Jackson v. Pasadena 
City School District, 59 Cal.2d 876 (1963); Brown v. Board of 
Education, 347 U.S. 483 (1954) (school desegregation cases). 
Indeed, classifications based on race are treated by the 
California courts as "highly" suspect, requiring that a court 
"adopt an attitude of active and critical analysis" and subject 
the classification to "strict scrutiny." Westbrook, 2 Cal.3d at 
784-85 n.37, and accompanying text.

B. A REDISTRICTING PLAN THAT REDUCES MINORITY VOTING 
STRENGTH IS PROHIBITED BY THE GUARANTEE OF EQUAL 
PROTECTION OF THE LAWS.
In its landmark decision, Reynolds v. Sims, the United 

States Supreme Court recognized that the right to vote, secured 
by the Equal Protection Clause, includes the right not to have 
one's vote diluted;

The right to vote freely for the candidate 
of one's choice is of the essence of a 
democratic society, and any restrictions on 
that right strike at the heart of represen­
tative government. And the right of 
suffrage can be denied by a debasement or 
dilution of the weight of a citizen's vote 
just as effectively as by wholly prohibiting 
the free exercise of the franchise.

377 U.S. at 555. The California Supreme Court has also
underscored that it is impermissible to impair the right to vote

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through electoral practices that dilute the strength of votes
cast by a particular group. In Gould v. Grubb, 14 Cal.3d at
672, the Court struck down a local ordinance that gave a
preferred position on the ballot to incumbents, holding that:

such an advantage for a particular class of 
candidates inevitably dilutes the weight of 
the vote of all those electors who cast 
their ballots for a candidate who is not 
included within the favored class. . . . [In
some circumstances] the challenged provision 
effectively undermines the fundamental 
democratic electoral tenet of majority rule.

Id. at 670. See also Curtis v. Board of Supervisors, 7 Cal.3d
at 953; Westbrook v. Mihaly, 2 Cal.3d at 787.

A redistricting plan can result in unconstitutional
vote dilution in two distinct ways. First, the equal protection
clause is violated if the population among voting districts
substantially deviates from mathematical equality. Calderon v.
City of Los Angeles, 4 Cal.3d 251, 261-62 (1971). Second, even
if a redistricting plan achieves population equality, it is
illegal if it operates to cancel out or reduce the voting
strength of a minority group. Calderon, 4 Cal.3d at 260.
Petitioners' challenge falls within the latter category. In
Calderon, the court declared that

. . . [A]n otherwise acceptable 
apportionment plan may fail to pass 
constitutional muster if "designedly or 
otherwise," it operates "to minimize or 
cancel out the voting strength of racial or political elements of the voting 
population." [Citations omitted.] . . .
Racial or ethnic minorities often have 
distinct political interests, not shared by 
the general public, for which they seek 
political redress through their elected 
representatives. [Citations omitted.]

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r 5

Id. at 260 (footnotes omitted). In Castorena v. City of Los 
Angeles, 34 Cal.App.3d 901, 915 (1973) the Court of Appeal 
affirmed this principle that a legislative body may not enact a 
reapportionment plan that minimizes or cancels out minority 
group voting strength.— ^

The federal courts have also consistently struck down 
reapportionment plans that impermissibly reduce minority voting 
strength in violation of the United States Constitution. See,
e,g., Rybicki v. State Board of Elections, 574 F.Supp. 1082, 
1108-12 (N.D.I11. 1982) (three-judge court); Robinson v. 
Commissioners Court, 505 F.2d 674 (5th Cir. 1974); Kirksey v. 
Board of Supervisors, 554 F.2d 139 (5th Cir.) (en banc), cert. 
denied, 434 U.S. 968 (1977); see also Buskey v. Oliver, 565 
F.Supp. 1473 (M.D. Ala. 1983) (Voting Rights Act case).
/
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/

28/— ' The plaintiffs in Castorena challenged the 
reapportionment of the Los Angeles City Council resulting from 
the Calderon decision. They failed to establish that the 
adopted redistricting plan for the city council actually reduced Hispanic voting strength. The evidence demonstrated only that 
the Council failed to select, among several alternatives, the 
plan most politically advantageous to Hispanics. The plan 
actually chosen did not reduce Hispanic voting strength but, in 
fact, significantly increased it from that which existed under 
the old boundaries. The increase was not, however* as much as 
the plaintiffs wanted. The court concluded that since no 
impermissible dilution had occurred, the adopted plan was not 
unconstitutional. 34 Cal.App.3d at 914-17.

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C. THE 1983 REDISTRICTING VIOLATES THE EQUAL PROTECTION 
CLAUSE OF THE CALIFORNIA CONSTITUTION BECAUSE IT HAS 
THE EFFECT OF REDUCING BLACK VOTING STRENGTH.
1. A Violation of Equal Protection of the Laws is 

Established by a Showing that the 1983 
Redistricting Plan Has the Effect of Reducing 
Black Voting Strength.

In accordance with the California Supreme Court's 
decisions interpreting the state equal protection clause, 
petitioners can demonstrate a violation either by showing that 
the 1983 redistricting plan has the effect of diluting their 
vote or by showing purposeful discrimination. E.g., Calderon v. 
City of Los Angeles, 4 Cal.3d at 261 n.ll (denial of voting 
rights may be established by either a showing of discriminatory 
effect or purposeful discrimination such as "an impermissible 
gerrymander"); Jackson v. Pasadena City School District, 59 
Cal.2d at 880 (unlawful school segregation may be established by 
showing either de facto segregation or "gerrymander or other 
affirmative discriminatory conduct").

In Calderon, the California Supreme Court ruled that, 
in order to establish that a redistricting plan violates the 
guarantees of equal protection under the California 
Constitution, a plaintiff need only demonstrate that the plan 
has a discriminatory effect on a protected group. The Court 
explicitly rejected the city's contention that the plaintiffs 
were required to prove discriminatory purpose, stating that "no 
discriminatory motive on the part of districting officials need 
be shown to call into question such an apportionment." Id. , 4

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Cal.3d at 261 n.ll. The Court of Appeal, in Castorena v. City 
of Los Angeles, reaffirmed that a plaintiff need only 
demonstrate that a reapportionment plan has the effect of 
minimizing or cancelling out group voting strength. Castorena, 
34 Cal.App.3d at 912. As earlier discussed, supra at note 28, 
the plaintiffs in Castorena were unsuccessful because they could 
not establish that the adopted plan actually had the effect of 
reducing their voting strength.

In Gould v. Grubb, the Court rejected the city's 
defense that since the ballot procedure was not intended to 
encourage incumbent voting, it was not responsible for any 
resulting inequity. The Court declared that: "It is the
unequal effect flowing from the city's decision to reserve the 
top ballot position for incumbents that gives rise to the equal 
protection issue in question in this case." Gould, 14 Cal.3d at 
669 n.9.

In other areas of equal protection law, the California 
Supreme Court has consistently required proof of discriminatory 
effect, rather than discriminatory purpose, in order to 
establish a violation of the state equal protection clause. See 
e,q., Crawford v. Board of Education, 17 Cal.3d 280, 298 (1976); 
Serrano v. Priest, 5 Cal.3d 584, 602-04 (1971); Jackson v. 
Pasadena City School District, supra, 59 Cal.2d at 880 (1963); 
see also American Federation of State Employees Local 685 v. 
County of Los Angeles, 146 Cal.App.3d 879, 888 (1983); Larry P. 
v. Riles, 84 D.A.R. 398 (1984) (federal court, interpreting 
California Constitution, determined that equal protection

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violation is established by proof of de facto segregation 
alone).

It should be noted that the United States Supreme 
Court, reversing a long line of federal precedent, recently held 
that a challenge to a discriminatory voting system under the 
Fourteenth Amendment of the United States Constitution requires 
proof of discriminatory purpose. City of Mobile v. Bolden, 446 
U.S. 55 (1980) However, in the instant case, this Court is
bound to apply California authority construing the equal 
protection standard of Article I, § 7 of the California 
Constitution, which the Bolden decision does not affect. The 
California Supreme Court has repeatedly affirmed that the 
protections of the California Constitution have "an independent 
vitality."

29 /—  Until Bolden, the federal courts had permitted 
plaintiffs to prove that a redistricting plan violated the 
fourteenth amendment by satisfying one of two alternative tests:

[T]o establish the existence of a constitutionally 
impermissible redistricting plan, in the absence of 
malapportionment, plaintiffs must maintain the burden of proving (1) a racially motivated gerrymander, or a 
plan drawn along racial lines, Wright v. Rockefeller,
1964, 376 U.S. 52 . . .; Gomillion v. Lightfoot, 1960,
364 U.S. 339 . . ., or (2) that " . . .  designedly or 
otherwise, a[n] . . . apportionment scheme, under the 
circumstances of a particular case, would operate to 
minimize or cancel out the voting strength of racial 
or political elements of the voting population."
Burns v. Richardson, 1966, 384 U.S. 73, 88. See 
Whitcomb v. Chavis. 1971, 403 U.S. 124, 143-144, 149.

Howard y.. Adams Countv. 453 F.2d 455, 457-58 (5th Cir.) cert. 
denied, 407 U.S. 925 (1972). See, e.g., Robinson jy. 
Commissioners Court. 505 F.2d 674 (5th Cir. 1974); Kirksev v. 
Board of Supervisors. 554 F.2d 139 (5th Cir.) (en banc), cert denied, 434 U.S. 968 (1977).

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California Supreme Court has repeatedly affirmed that the 
protections of the California Constitution have "an independent 
vitality."

- X
[0]ur state equal protection provisions, 
while "substantially the equivalent of" the 
guarantees contained in the Fourteenth 
Amendment to the United States Constitution, 
are possessed of an independent vitality 
which, in a given case, may demand an 
analysis different from that which would 
obtain if only the federal standard were 
applicable. . . . "In such constitutional 
adjudication, our first referent is Cali­
fornia law and the full panoply of rights 
Californians have come to expect as their 
due. Accordingly, decisions of the United 
States Supreme Court defining fundamental 
rights are persuasive authority to be 
afforded respectful consideration, but are 
to be followed by California courts only 
when they provide no less individual protec­
tion than is guaranteed by California law."

Serrano v. Priest, 18 Cal.3d 728, 764 (1976), cert, denied, 432
U.S. 907 (1977) (citations omitted). See Assembly v.
Deukmej ian, 30 Cal.3d 638, 672 (1982); Committee to Defend
Reproductive Rights v. Myers, 29 Cal.3d 252, 261 (1981), appeal
dismissed, 456 U.S. 941 (1982); Tinsley v. Palo Alto Unified
School District, 91 Cal.App.3d 871, 894 (1979).

Petitioners, therefore, may establish a prima facie
violation of the equal protection of the laws by demonstrating
that the Plan has the effect of significantly reducing black
voting strength. An effects standard is particularly
appropriate because this case involves both a suspect class,
blacks, and the most fundamental of rights, the right to an
undiluted vote. See generally Serrano, 5 Cal.3d at 596-610.
/
/

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15

2. The 1983 Redistricting Plan Has the Effect of 
Reducing Black Voting Strength in Violation of 
the California Constitution.

The reduction in the black voting strength in 
District 3 caused by the 1983 Redistricting is clear. The 
following Planning Department estimates summarize the adverse 
impact of the redistricting on black voting strength and the 
enhancement of white voting strength in District 3.

Original Redistricted 
Population Population

Black
White

93,363
85,663

71,587
118,865

Population 
Change____
-21,776
+33,202

Percentage 
Change from 
Original
(-23.3%)
(+38.8%)

See supra at note 3; Fraley Exh. 27. District 3 lost a net 
21,776 black residents and gained a net 33,202 white residents. 
More than a fifth of the original black population was 
transferred out of District 3; the white population of 
District 3 was augmented by 38.8% over its original level.

Blacks were the largest plurality group in District 3 
(42.3%) before the redistricting. See supra at p. 13 (table). 
After the redistricting, whites emerged with a clear majority 
(52%) . See supra at p. 24 (table).

Before the redistricting, District 3 was the only 
supervisorial district that was not majority white. See supra 
at p. 13 (table). It had the greatest representation and 
largest number of black residents. 1x3. After redistricting, 
all the supervisorial districts were majority white. See supra 
at p. 24 (table).

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5

The changes in black voting strength did not result 
from any natural demographic shift. The reduction of black 
voting strength was caused by fracturing the black population in 
District 3 in two heavily black areas, and transferring white 
areas into District 3. See supra at nn. 13 and 18 and 
accompanying text. The Plan shifted, from District 3 to 
District 4, four census tracts in the Bancroft area of East 
Oakland, and eight tracts in the Lake Merritt area. _Id. See 
Map 3, attached herewith. At the same time, thirteen virtually 
all-white tracts from San Leandro and unincorporated areas were 
added to District 3. See supra at nn. 14, 15. and 19. The net 
result was that the black population in District 3 dropped, and 
the white population jumped from 38.8% to 52%, making whites a 
new majority in the District.

These statistics clearly demonstrate a reduction of 
minority voting strength. By diminishing the number of blacks 
in District 3, the Plan frustrates the ability of Oakland blacks 
to elect a supervisor who will represent their interests. As 
the California Supreme Court recognized in Calderon v. City of 
Los Angeles, 4 Cal.3d at 260, "[r]acial or ethnic minorities 
often have distinct political interests, not shared by the 
general public, for which they seek political redress through 
their elected representatives." A plan that "tends sharply to 
reduce the representation of such groups" is "constitutionally 
suspect." Id. at 261.

The reduction in black voting strength plainly has a 
"'real and appreciable impact' on the equality, fairness and 
integrity of the electoral process," Gould v. Grubb, 14 Cal.3d

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at 670, in District 3. The best evidence of this impact is the 
1982 election results. The black challenger, Sandre Swanson, 
successfully obtained a plurality of the votes in the June 
election and ultimately lost to Supervisor Cooper by only 2,864 
votes in the November election. Petition at <| 13. In both 
elections, Swanson carried all the 63 majority black precincts 
in District 3. See Watson Decl., 1[ 4. These majority black 
precincts were 68% of the precincts Swanson carried in June and 
72% of the precincts he carried in November 1982. _Id. The 
redistricting, however, transferred 14 of the majority black 
precincts out of District 3. Watson Decl., 1[ 6. It therefore 
is highly unlikely that, after the redistricting, any black 
challenger would ever come close to unseating Cooper. See 
Swanson Decl., 6.

The fracturing of Oakland blacks between two districts 
also impedes the ability of the black community to organize and 
campaign on behalf of favored candidates. 3j3. , K 6. This 
problem is not a mere theoretical possibility but an actual 
effect of the Plan. The 1983 Redistricting removed from 
District 3 the residences of at least three black political 
leaders. See Swanson, Bazile, and Riles Decls. Two of them, 
Sandre Swanson and Leo Bazile, had run against Supervisor Cooper 
in previous elections. The third, Wilson Riles, Jr., is a 
member of the Oakland City Council and the assistant to John 
George, the District 5 supervisor. By eliminating these persons 
from the district, the Plan deprives Oakland voters in 
District 3 of potential candidates with name recognition and 
established track records. See generally Anderson v.

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Celebreeze,   U.S.  ,  , 103 S.Ct. 1564, 1569-70 (1983).
Moreover, limited campaign resources of black political groups 
must now be expended to finance supervisorial campaigns in two 
districts, each with a substantially lower probability of 
success. Thus, the practical consequences of the Plan have the 
effect of further reducing the voting strength of blacks in 
District 3.

D. THE 1983 REDISTRICTING PLAN WAS INTENDED TO DILUTE
BLACK VOTING STRENGTH IN VIOLATION OF THE CALIFORNIA 
CONSTITUTION.
1. The Arlington Heights Standard.
The U.S. Supreme Court has recognized that direct 

evidence of discriminatory purpose will rarely be available, and 
that ascertaining "the existence of a discriminatory purpose 
'demands a sensitive inquiry into such circumstantial and direct 
evidence of intent as may be available.'" Rogers v. Lodge, 458
U.S. 613, __, 102 S.Ct. 3273, 3276 (1982), quoting Village of
Arlington Heights v. Metropolitan Housing Development, 429 U.S. 
252, 266 (1977). In Arlington Heights, a case concerning 
exclusionary zoning, the Court systematically catalogued several 
evidentiary sources for assessing the existence of a 
discriminatory legislative purpose.

The first factor noted by the Court in Arlington 
Heights was the effect of the official action itself. "The 
impact of the official action —  whether it 'bears more heavily 
on one race than another' . . .  —  may provide an important 
starting point." Ij3. at 266 (citation omitted). As discussed

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If 5

at length in Section V.C, supra, the 1983 Redistricting had a 
grossly disproportionate impact on blacks. It is uncontroverted 
that the Plan reduced the black population in District 3 more 
than a fifth and increased the white population by nearly 40%. 
This disproportionate impact alone is strongly probative of a 
discriminatory motive.

The Court in Arlington Heights suggested several other 
factors indicative of a discriminatory purpose. These include 
(1) substantive irregularities; (2) procedural irregularities;
(3) the historical background of the action and the specific 
sequence of events leading to the challenged action; and (4) the 
legislative or administrative history, particularly contem­
poraneous statements by decisionmakers. 429 U.S. at 266. An 
analysis of the circumstances surrounding the 1983 Redistricting 
in light of these evidentiary factors, with the evidence of 
disproportionate impact on blacks, leads to the indisputable 
conclusion that the Board acted with discriminatory purpose when 
it adopted the 1983 Redistricting.

2. Application of the Arlington Heights Standard, 
a. Substantive Irregularities.

In adopting the 1983 Redistricting, respondents sought 
to accomplish far more than the equalization of population. The 
convoluted and unnecessary population shifts constitute 
significant departures from substantive regularity that are 
strongly indicative of an intent to discriminate. See Arlington 
Heights, 429 U.S. at 266.
/

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#5

Elections Code §§ 35000 and 35001 required mandatory 
decennial supervisorial redistricting by November 1, 1981 in 
order that "the districts shall be as nearly equal in population 
as may be." Elections Code § 35003 empowers the Board to adjust 
district boundaries "[a]t any time between the decennial 
adjustments of district boundaries." Any redistricting, of 
course, also must meet the requirements of the equal protection 
clause of the California Constitution, which forbids the 
redrawing of district boundaries so as to reduce minority voting 
strength. See Calderon, 4 Cal.3d at 260.

(i) The decision to redistrict in 1983.
The percentage difference in population between the 

largest and smallest districts in 1981 was 11.3%. Planning 
Department statistics indicate the following 1981 estimates of 
population.— ^

Population Deviation 
from Ideal

% Deviation 
from Ideal

District 1 237,171 +14,699 + 6.61
District 2 225,734 + 3,262 + 1.47
District 3 216,708 - 5,764 -2.59
District 4 220,824 - 1,648 i o 4̂

District 5 211,925 -10,547 -4.74
Total 1,112,362

30/ .— Fraley Exh. 2. (Deviation from Ideal and % Deviation 
from Ideal statistics were derived). Petitioners calculated the 
deviation from ideal and percentage deviation, using the 
Planning Department district population figures, Fraley Exh. 2, and the methodology described at n.4, supra.

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#5

In discharging its mandatory duty to redistrict under Elections 
Code § 35000, the Board made only small technical changes to the 
boundaries that did not affect population. Return at if 15. 
Between 1981 and 1983, the deviation in population increased a 
mere .3% from 11.3% to 11.6%, according to Planning Department
figures. The Planning Department1s 1983 table of district
populations shows:

Population
Deviation 
from Ideal

% Deviation 
from Ideal

Distr ict 1 243,423 +14,400 + 6.29
District 2 240,048 +11,025 + 4.81
District 3 220,781 - 8,242 -3.60
District 4 224,016 - 5,007 -2.19
District 5 216,849 -12,174 -5.32
Total: 1,145,117

Fraley Exh. 14.
While the mandatory provisions of Elections Code 

§ 35000 and a 11.3% deviation among districts did not impel the 
Board to reapportion to achieve equalization in 1981, an 
additional 0.3% deviation by 1983 presumably catalyzed the Board 
to undertake a discretionary redistricting. That is an 
inherently incredible proposition. Respondents' claim that 
redistricting was somehow required in 1983 by severe population 
imbalances is robbed of any force by the plain fact that 
comparable imbalances in 1981 were found tolerable. Indeed, the 
record shows that County Counsel in 1981 specifically advised 
the Board of Supervisors in two legal memoranda, see supra at 
n.6, that even greater population deviations, up to 11.9% and

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16.4%, were acceptable under United States Supreme Court 
precedents. See Mahan v. Howell, 410 U.S. 315 (1973) (16.4%);
Abate v. Mundt, 403 U.S. 182 (1971) (11.9%).

The record, therefore, clearly demonstrates that, in 
the minds of Board members, population imbalances among the 
various supervisorial districts did not require redistricting in 
1983. The discretionary decision to redistrict in order to 
equalize population —  while not itself illegal —  was 
undertaken for other reasons, reasons that are highly suspect.

(ii) The manipulation of population.
As demonstrated by the population table at page 13, 

supra, the south county districts (1 and 2) were population- 
heavy and necessitated shifting approximately 25,425 persons 
northward from Districts 1 and 2 to bring Districts 3, 4, and 5 
up to the ideal population. Since District 5 shares no common 
boundary with Districts 1 or 2, population needed to be passed 
from Districts 1 or 2 through either Districts 3 or 4 to reach 
District 5. Yet, under the adopted Plan, the largest population 
shifts were not related to the goal of shifting population 
northward. The single largest set of population shifting 
accomplished by the 1983 Plan was an exchange of population 
between Districts 3 and 4 that in no way facilitated population 
balancing. A total of 44,313 persons, a majority of whom were 
black, were shifted from District 3 to 4, and 23,274 persons, 
almost all white, were then shifted from District 4 to 
District 3. See supra at nn. 13-16, 18-20. It is admitted by 
respondents that this exchange of population involved fully half 
of all the precincts transferred from one supervisorial district

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to another by the 1983 redistricting. See Return at 1[ 6. 
Moreover, the shifts from 3 to 4 were so substantial that 
District 4 in turn had to give 7,390 persons to District 2, even 
though it was District 2 that was ostensibly overpopulated. See 
supra at n. 16. These facts alone demonstrate that the 
equalization of population, permitted by § 35003, was not the 
Board's only or predominant purpose.

Further, while the ostensible purpose of the entire 
process was to balance the population, the Board did not seek a 
breakdown of population by proposed district from the Planning 
Department until the September 19th green-line map was entirely 
completed by Charles Brown and relayed to the Planning 
Department, four months after the process began and less than 
two weeks before the final plan was adopted. See text at p. 23, 
supra. Finally, this initial green-line plan, one which was 
distributed to local governments for comment, contemplated no 
change in District 5, despite the fact that that district was 
over 12,000 persons short of the ideal population and the most 
underpopulated district in the County. Fraley Exh. 20.

When the racial character of the shifts among 
districts is then considered, the purpose becomes unmistakable. 
In order to augment District 3 by the necessary 8,000 persons, a 
relatively small increase given District 3's original population 
of 221,000, the Plan added fully 45,385 whites and 754 blacks 
from Districts 2 and 4 to District 3, and removed 14,271 whites 
and 23,165 blacks to Districts 4 and 5. See supra at notes 
13-16, 18-20. If the actual net gain in population for 
District 3 of 7,972 that was achieved by the redistricting had

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been achieved by moving only whites into District 3, and no 
other changes had been made in the district's population, the 
percentage of whites would only have increased from 38.8% to 
40.9% and the black percentage would only have decreased from 
42.3% to 40.8%. See supra at n. 3. In actuality, District 3, 
as redistricted, emerged with a white population of 52.0% and a 
black population of 31.3%. See Fraley Exh. 4, 27.

Not only was the racial character of the exchange of 
population between Districts 3 and 4 extraordinary, it was 
unique as well. Redistricting resulted in substantial 
alterations in racial composition in no other districts. While 
the white proportion of the population in District 3 increased 
13.2% and the black proportion decreased 11.0%, and the black 
proportion of District 4's population increased 8.8% and the 
white proportion decreased 10.3%, the greatest change involving 
any racial or ethnic group's representation in any other 
district was no more than 1.9%. See supra at n. 24 and 
accompanying text.

This fracturing of minority communities is precisely 
the sort of classic dilutive manipulation condemned in voting 
rights caselaw as strongly probative of a discriminatory 
purpose. E.q., Rybicki v. State Board of Elections; Robinson v. 
Commissioners Court. The Rybicki court cited several egregious 
examples of black vote dilution by means of fracturing —  
examples that are strikingly similar to the Board's actions 
here:

The Commission, in the course of adding the 
necessary 8000 persons to District 28, 
removed 34,000 blacks from that District and

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5

added 42,000 whites, thereby reducing the 
black population percentage in the newly 
created Commission district to 38%. The 
result of this shift in racial populations 
. . . was to dilute the voting strength of 
the nearly 73,000 blacks who remained in Commission Senate District 14 after the 
shift in populations.

574 F.Supp. at 1109 (footnote omitted).
In the course of adding the approximately
2.000 persons necessary to bring District 30 
to ideal population, the Commission increas­
ed the white population in what is now Com­
mission Senate District 18 by nearly 30,000 
and decreased the black population by over
40.000 persons. . . . The voting strength of the 45,000 blacks left in Commission 
Senate District 18 has thus been dissipated.

Id. at 1110.
The Fifth Circuit in Robinson invalidated fracturing 

similar to that present in this case. The plaintiffs in 
Robinson contested the redistricting of the four precincts of 
Anderson County, Texas. Blacks there constituted 26% of total 
county population and were concentrated within the southwest 
portion of the City of Palestine. Prior to the redistricting, 
the entire City of Palestine was contained within one precinct. 
The challenged plan unnecessarily divided the black population 
between three precincts. In striking down the plan, as an 
effort to dilute increasing black electoral strength, the court 
noted that this fragmentation of a cohesive voting community 
contained in the plan was probative of defendants' intent to 
dilute black votes:

The most crucial and precise instrument of 
the Commissioner's denial of the black 
minority's equal access to political 
participation, . . . remains the gerrymander 
of precinct lines so as to fragment what

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r 5

could otherwise be a cohesive voting 
community.

505 F.2d at 679.
(iii) The "uncouth configuration" of new 

District 3.
The parties agree that new District 3 emerged with an 

"uncouth configuration." Compare, Petition at 1| 18(d) with 
Return at K 6. This resulted directly from the changes in 
boundary lines made to transfer predominantly black areas from 
District 3 to District 4, and the changes made to add virtually 
all-white areas to District 3. As a result, the northeast edge 
of District 3 was changed from the MacArthur Freeway, Interstate 
580, a natural boundary, to a jagged line cutting along 
residential streets through the black community. Petition at 
K 18(d). At another section, MacArthur Boulevard, a major 
street, was replaced as a boundary line by an irregular stair 
step. 3̂ 3. In the southern part of District 3, precincts from 
San Leandro (a separate city) that had formerly been contained 
entirely within District 4 were split off from District 4 and 
added to District 3. Ld. Unincorporated areas of the County 
were also added to District 3 in the south, including virtually 
all-white precincts that form a triangular island connected to 
District 3 by only a narrow corridor and otherwise 
noncontiguous. Id.

The United States Supreme Court condemned comparable 
racial gerrymandering in Gomillion v. Lightfoot, 364 U.S. 339 
(1960) . In Gomillion, the Court struck down a redistricting 
plan that excluded all the black voters from the City of

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Tuskegee, Alabama, by replacing a regularly-shaped district with 
an "uncouth" configuration. 364 U.S. at 399. In the instant 
case, not only were natural highway boundaries transgressed in 
order to rid District 3 of black voters, but a city was split in 
half and unincorporated areas were connected only by a thread of 
territory in order to add white areas to District 3. This was 
done in the face of the County's own charter provision, Alameda 
County Charter, § 7, that requires the Board to consider (aside 
from population), topography; geography; cohesiveness, 
contiguity, integrity, and compactness of territory; and 
community of interests of the districts. See also Elections 
Code § 35000, which suggests consideration of the same criteria.

*  *  *

The 1983 Redistricting included a series of convoluted 
population shifts that cannot be reconciled as a simple effort 
to equalize population. These shifts manipulated and fractured 
minority populations, acts that constitute persuasive evidence 
of an intent to discriminate. The resulting awkward 
configuration of the Plan is additional strong circumstantial 
evidence of the Board's illicit racial purpose.

b. Procedural Irregularities.
The hasty, behind-the-scenes manner in which the 

Redistricting Plan was passed provides further circumstantial 
evidence of invidious intent. The redistricting process was
largely shielded from public scrutiny or debate. What public

/
proceedings there were were minimal, perfunctory, and not 
designed for meaningful public participation.
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The Board first considered the redistricting issue in 
an off-agenda item on June 28, 1983. See supra at p. 13. The 
Board expressed an intention to hold a public hearing on the 
issue; that hearing never took place. See supra at p. 14. The 
public was not kept informed about the redistricting process.
On September 20, several local governments were sent copies of 
the completed green-line map, their first notification of the 
redistricting. See supra at p. 18. The public hearing was set 
for October 4th without public notice. Several of the local 
governments formally protested to the Board that notice to them 
was much too short and completely inadequate for proper 
consideration of the plan. See supra at p. 21. Further, they 
objected that the public hearing date prevented their 
participation because it conflicted with a California League of 
Cities conference. _Id. The Board chose not to change the 
October 4th hearing date, despite the many protests. See Fraley 
Exh. 23.

Until the October 4th hearing, no public input had 
been solicited. At that hearing, members of the public 
criticized various aspects of the Plan. See supra at p. 22.
The objection consistently raised by virtually every speaker was 
that more time was needed for effective public review and 
participation in the highly political process. Jd. Several 
witnesses requested the appointment of a citizen advisory 
committee as permitted by Elections Code § 35005. Id. These 
appeals were unavailing; the majority of the Board voted to put 
a slightly modified Map A to first reading. It was enacted the 
/

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following week without any further public hearing, change or 
comment.

While there is no legal requirement that the public 
participate in the development of a redistricting plan, each of 
the supervisors testified after the fact that, even absent a 
legal duty, he believed that public participation was important 
in the process. Excell Depo., Vol. II, pp. 21-23; Bort Depo., 
pp. 14-19; Cooper Depo., pp. 9-10; Santana Depo., p. 17-18.
Good government demands no less. The 1983 Redistricting Plan, 
however, was the product of back room political deals and 
maneuvering. Each incumbent dictated the new lines for his 
district without restraint or accountability; the only 
limitation was that a supervisor had to obtain the acquiescence 
or consent of the supervisors of adjoining districts. See supra 
at p. 15. The proposals were grudgingly made public at the last 
minute. Only a succession of maps, without any explanation of 
initial maps, proposed changes or revisions, was made available.

For instance, it was only on October 7th, three days 
after the public hearing, that the Planning Department prepared 
a table of the impact of the adopted proposal on the racial 
composition of District 3 and the other districts. Fraley 
Exh. 27. This critical information, in any event, was sent only 
to the Board and never made public, despite specific requests 
for this information from concerned Oakland residents. See 
infra at pp. 60-61. In the absence of even such basic 
information, there could be no meaningful opportunity for public 
participation in the development of the 1983 Redis'tricting Plan. 
/

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In short, there was no public participation in the 
development of any of the proposals in spite of the fact that 
the redistricting of supervisorial districts is a threshold 
issue of such significance that the integrity of all other Board 
activities is called into question by improper redistricting.

c. Historical Background and the Specific 
Sequence of Events.

The historical background and the specific sequence of 
events leading to the adoption of the 1983 Redistricting provide 
strong circumstantial evidence that Supervisor Cooper intended 
to redraw District 3 to ensure his own political future by means 
of reducing the percentage of blacks in his own district.

Fred Cooper was first elected as supervisor of 
District 3 in 1970. Cooper Depo., p. 2. During the seventies, 
blacks, once excluded from Oakland politics, made substantial 
political gains as their voting strength increased. For 
instance, Oakland now has a black mayor and several black 
members of the city council. Cooper Depo., p. 24-25.

In the 1978 supervisorial election in District 3, 
black candidate Leo Bazile challenged incumbent Cooper and 
received 42% of the vote. See supra at p. 11. In the 1982 
District 3 election, black candidate Sandre Swanson challenged 
Fred Cooper and received a plurality (37.6%) of the votes cast 
in the June primary election. See supra at p. 11-12. Cooper 
narrowly defeated another white candidate by 242 votes, 
qualifying for the run-off election by less than 1% of the vote. 
]̂ a. Of the 97 Oakland precincts in District 3, Swanson won 93 
in June; Cooper won only 4. Id. In the November 1982 run-off,

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Swanson obtained 47.4% of the vote, losing to Cooper by 2,864 
votes. J[d. This time, of the 97 Oakland precincts, Swanson won
88 and Cooper won 9. Cooper's support was almost entirely in

• -*

the predominantly white city of Alameda. Watson Decl., m[ 4-5.
The Cooper-Swanson election returns demonstrate that 

virtually all the majority black precincts went for Swanson.
See supra at p. 12. This is persuasive evidence of the 
existence of racially polarized voting, i.e., blacks vote for 
black candidates and whites vote for white candidates in 
District 3. These election results gave Cooper a clear 
incentive to remove blacks from his district. As discussed 
further below, a comparison of the 1983 redistricting with these 
election returns demonstrates that this is precisely what Cooper 
achieved —  almost all of the census tracts that were removed 
from District 3 in the 1983 Redistricting are comprised of 
precincts that voted overwhelmingly for Swanson. See Watson 
Decl. at K 6.

A few months after narrowly winning the run-off 
against Swanson, Cooper specifically requested population by 
race from the Planning Department. Fraley Exh. 4. Discussion 
of reapportionment began among the Board members after this 
point. Cooper Depo., pp. 53-54. As previously noted, the Board 
was not required by law to redistrict but it could, within its 
discretion, do so.

From the remarkably little that any of the Board 
members recall or that the public was permitted to know about 
the process leading up to the adoption of the final Plan, it 
appears that each supervisor, with the exception of Supervisor

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George, was responsible for the redistricting of his own 
district, with the acquiescence of supervisors of neighboring 
districts. See supra at p. 15. As a matter of courtesy, each 
of the Board members deferred to the others about th'e drafting 
of their own districts. Excell Depo., Vol. I, p. 37; Santana 
Depo., pp. 20-21. The Planning Department provided only 
technical advice and made no substantive decisions about the 
location of the lines. Fraley Depo., pp. 57-60, 84.

Cooper testified that he personally developed a 
proposal for redistricting that was contained in an undated memo 
entitled "Memo Re Redistricting." (Cooper Depo., p. 45, Cooper 
Exh. 4.) Charles Brown, Cooper's aide, testified that Cooper 
instructed him to develop a redistricting map. Brown Depo., 
pp. 38-42.— ^ Brown had been Cooper's campaign manager in 1978 
and 1982 and admitted knowing that Cooper got very few black 
votes in East Oakland. Brown Depo., pp. 12, 24-27. Brown 
developed a plan that was relayed by Supervisor Excell to the 
Planning Department for population breakdown some time in mid- 
September. See supra at p. 16. No other plan was drafted and 
given to Excell. This plan is the green-line map that was 
referred to in the September 21st memo. This initial plan 
included almost all of the enormous District 3 and 4 exchange, 
which accommodated Bort's desire to escape the burden of more

— / Cooper testified that, a.t Supervisor Excell's request, 
he permitted Brown to assist Excell with the redistricting. 
Cooper Depo, p. 54. In contrast, Supervisor Excell testified 
that he never considered Brown to be his assistant’and assumed 
throughout that he was working for Cooper. Excell Depo.,
Vol. 1, p. 43.

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unincorporated residents while also fulfilling Supervisor 
Cooper's desire to eliminate voters who opposed him, i.e., 
blacks. See nn. 16-18 and accompanying text, supra. In this 
way, the plan ensured the necessary three votes for 
approval: Cooper, Bort, and Excell (who was unaffected). The 
original plan did not, however, adequately equalize population, 
the ostensible legitimating purpose for the entire 
redistricting. See supra at p. 16 (table). Accordingly, Board 
members or their agents hastily revised the Plan, shifting still 
more black census tracts in the Bancroft area from District 3 to 
District 4. See supra at p. 20. A second alternative, Map B, 
still more detrimental to District 3 blacks, was drafted at the 
same time. See supra at pp. 19-21. None of the Board members, 
nor Planning Director Fraley, nor Charles Brown can now recall 
who proposed Map B.

Furthermore, an analysis of the areas eliminated from 
District 3 supports the inference that the District 3 boundaries 
were intentionally drawn to protect Cooper's position and to 
impede black political development. The Plan removed 31 Oakland 
precincts from Supervisor Cooper's district. See Watson Decl.,
11 6. Of these, Sandre Swanson had won 29 of 31 precincts in the 
June 1982 election and 25 of 31 precincts in the November 1982 
election. Id. Of these 25 precincts won by Swanson in November 
1982, 21 of 25 precincts were majority black or majority 
minority. Id.

The adopted plan removed from District 3 the 
residences of Leo Bazile and Sandre Swanson, Cooper's black 
opponents in the two previous elections and Wilson Riles, Jr.,

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Oakland City Councilman and aide to Supervisor John George. 
Bazile, Swanson, and Riles Decls.

The background and specific sequence of events leading
to the adoption of the plan thus provide further evidence of a
discriminatory purpose on the part of Supervisor Cooper. In
Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974),
the court found similar circumstantial evidence probative of an
intent to discriminate:

"[d]espite the gross population disparities 
between precincts, no redistricting in any 
form was effectuated until 1969, when blacks 
in Anderson County finally organized and 
elected Plaintiff Smith the first black 
Democratic Precinct Chairman . . .  in modern 
times.

Id., 505 F.2d at 679. See also Moore v. Leflore County Board of 
Election Commissioners, 502 F.2d 621, 624 (5th Cir. 1974) (near 
victory by black challenger directly preceding Board's decision 
to adopt an at-large electoral system was evidence of 
unconstitutionality).

Thus, the evidence presents a clear pattern on the 
part of Supervisor Cooper to protect his political future by 
reducing black voting strength within his district.

d. Legislative History.
Another category of proof that the Supreme Court in 

Arlington Heights, indicated would elucidate discriminatory 
purpose is the legislative history. In this case, the 
legislative history, while scant, is exceedingly damaging to the 
Board. As discussed previously, the Plan was adopted very 
hastily at the conclusion of a short public hearing. Virtually

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no documentation of the Plan's development was kept and the 
Board members now remember remarkably little about the process. 
However, Supervisors Cooper, Bort, Santana and George all now 
admit that they knew beforehand that the Redistricting would 
have an impact on the black population of District 3. See supra 
at p. 22. In addition, statements at the public hearing and 
racial statistics provided to the Board by the Planning 
Department between October 4th and 11th conclusively demonstrate 
that Board members were made aware of the adverse racial impact 
of the Plan and nonetheless went ahead and approved the 
redistricting in willful violation of the law.

At the October 4, 1983 public hearing, Charlene 
Dietrich, the president of the Muleskinners' Democratic Club, 
testified in part:

I have three questions that I would 
like to pose to the Board of Supervisors, 
and I would like a written response to them, 
the first of which is what impact would a 
rural redistricting plan have on the East Oakland community? Number two is, what 
would be the net effect of the plan on the 
East Oakland community, that is, 
specifically, whether it would be the total 
number of votes in the district in terms of 
percentage and the number of black votes 
that will be cut from the District 3 rolls?
And number three is, will the new 
redistricting plan hinder or enhance the 
prospects for increased black representation 
on the Alameda County Board of Supervisors?
We would really appreciate a written 
response to this and an opportunity for us 
to assess and analyze your response and to 
come back to you with our feedback.
Additionally, we would like to support the 
motion of a task force to study and give the 
community additional opportunity to input 
into this issue. We think it's a very 
important one, especially to those members 
in our club who live in the East Oakland 
area. We need additional information and we

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would certainly like an opportunity to hear 
what you have to say further on this and 
give you our feedback in response.

Public Hearing Trans., p. 21. Dietrich received no reply from
the Board. Sandre Swanson also testified at the hearing,
stressing that the Board had the obligation under Section 7 of
the County Charter to consider existing communities of interest
by means of research and solicitation of public input. Id.
at 13-16.

Supervisor George also specifically raised questions 
about the racial impact of both the revised Map A and Map B 
alternatives before the Board. I_d. at 29-30. Rather than 
discussing the issue, Supervisor Cooper immediately suggested 
that the meeting be carried over the lunch break for a decision, 
id. at 30, after which the discussion was dropped.

Any ambiguity about the racial impact of the revised 
Map A adopted at the October 4th hearing was resolved by actual 
statistics provided by the Planning Department to the Board. In 
a letter dated October 7, 1984, Planning Director Fraley 
provided population statistics by race for the newly adopted 
districts. See supra at p. 24 (table); Fraley Exh. 27. The 
letter clearly demonstrated the reduction of black voting 
strength in District 3. The Board nevertheless put the 
ordinance to a final reading on October 11th without further 
discussion. Public Hearing Trans., p. 54-55.

Substantial public protest resulted from the Board's 
decision, and on December 6, 1983, the Board reconsidered the 
redistricting ordinance. See supra at p. 29. Supervisor George 
moved to appoint a citizens' commission to study the

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supervisorial redistricting. Id. Supervisor Excell, the 
proponent of the 1983 Plan who had voted in favor of the 
redistricting ordinance, joined George's motion to reconsider 
the issue. 1̂ 3. The motion failed by a two to three vote -- 
Supervisors Cooper, Bort, and Santana opposed it. Id.

The legislative history, therefore, demonstrates that 
the Board was alerted to the concern about the racial impact of 
the Plan at the public hearing, but acted in willful disregard 
of the consequences to the black community in District 3.

* * *
Each element in the proof marshalled by petitioners to 

demonstrate racial discrimination is independently persuasive.
In the aggregate, the record is compelling. The undisputed 
factual record establishes that the 1983 Redistricting had a 
pronounced adverse impact on black voting strength in 
District 3. That showing alone is sufficient to prove a 
violation of the California Constitution's guarantee of the 
equal protection of the laws. Moreover, the undisputed record 
also demonstrates that the Redistricting was the product of 
purposeful racial discrimination. Petitioners have identified 
all the types of proof that the Supreme Court in Arlington 
Heights held demonstrated evidence of intentional 
discrimination —  disproportionate racial impact, substantive 
irregularities, procedural irregularities, historical background 
and specific sequence of events, and legislative history. This 
showing, too, is sufficient to prove a violation of the equal 
protection clause.
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The heavy burden on respondents to excuse or justify 
their actions is especially onerous because of the weight of the 
evidence of discrimination.

E. RESPONDENTS' EXPLANATIONS FOR THE 1983 REDISTRICTING
DO NOT JUSTIFY DENIAL OF THE CONSTITUTIONAL RIGHTS OF
BLACK RESIDENTS OF DISTRICT 3.
As demonstrated below, none of the various rationales 

proferred by respondents constitutes a valid legal justification 
for the unconstitutional reduction of minority voting strength 
demonstrated above.

1. Respondents Bear the Heavy Burden of
Demonstrating That the 1983 Redistricting Is 
Necessary to Achieve a Compelling State Interest.

"Reynolds [v. Sims] signalled the end to approval of 
restrictions on the right to vote once a rational connection 
between the constraint and a legitimate state policy was 
demonstrated." Castro v. State of California, 2 Cal.3d at 234. 
Under California law, the validity of an electoral system or 
mechanism that results in discriminatory treatment of a group of 
voters is tested under the strict scrutiny standard. Id. at 
237. Under this standard, "the state bears the burden of 
establishing not only that it has a compelling interest which 
justifies the law but that the distinctions drawn by the law are 
necessary to further its purpose." Westbrook v. Mihaly, 2 
Cal.3d at 785 (emphasis in original). This heavy burden applies 
not only to laws that directly deny the franchise but also to

ccllO# 5 63



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voting schemes that dilute the fundamental right to vote. See 
Castro, 2 Cal.3d at 234; Westbrook v. Mihaly, 2 Cal.3d at 785.

Respondents admit that the Board reduced black voting 
strength in District 3 but rationalize the 1983 Redistricting as 
an accommodation to a variety of political and governmental 
interests. None of these rationalizations was presented on 
behalf of the Redistricting Plan when it was adopted. Moreover, 
as we demonstrate below, the various interests do not as a legal 
matter constitute a compelling state interest. Furthermore, 
even if these interests, individually or collectively, were 
considered compelling, the 1983 Redistricting was not the only 
means by which these interests could have been accommodated. 
Thus, respondents are unable to meet their twin burden of 
demonstrating both that the reduction of black voting strength 
serves a compelling state interest and that the reduction was 
necessary to achieve a compelling state interest.

In defending a case of purposeful discrimination where 
the decision was motivated only in part by a racially 
discriminatory purpose, respondents have "the burden of 
establishing that the same decision would have resulted even had 
the impermissible purpose not been considered." Arlington 
Heights, 429 U.S. at 270-71 n.21; Rybicki, 574 F.Supp. at 
1107-08. As we show below, respondents simply cannot meet this 
burden.
/
/
/
/

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2. None of Respondents' Rationalizations Constitutes 
Either a Compelling State Interest or Is 
Necessary to Achieve a Compelling State Interest,
a. Respondents' Chronological Explanation of

the 1983 Redistrictinq.
Respondents in effect argue that the redistricting 

ordinance was the end product of a series of sequential and 
rational decisions. Return at 1| 21-30. This series of 
decisions can be summarized as follows:

o Supervisor Excell chose to split the City of Fremont 
rather than giving up all of the City of Dublin because 
Dublin had a greater community of interest with the 
Livermore Valley than the City of Fremont had with itself. (Return at U 21.)

o The Board then chose to shift population from 
District 2 to District 3 rather than to District 4 because 
Supervisor Bort refused to take any more constituents in 
unincorporated areas and Supervisors Santana and Cooper 
felt it would be "fair" to have Supervisor Cooper take these residents. (Return at 11 22-24 .)

o The Board chose to split San Leandro and shift half 
of the City from District 4 into District 3 in order to 
make the unincorporated areas (transferred from District 2 
into District 3) contiguous with the rest of District 3. 
This was considered acceptable since one-half of San 
Leandro had its own community of interest. (Return at 11 25.)

o The Board chose to shift portions of Castro Valley 
in District 4 back to District 2 in order to "even out the boundary and population." (Return at n 25.)

o Because District 4 gave up population to 
Districts 2, 3, and 5, the Board shifted the East Oakland 
population from District 3 to District 4 in order to 
balance population. (Return at K 28.)

As an initial matter, this bare recital of a sequence 
of decisions fails to state, much less demonstrate, either a 
compelling governmental interest or show necessity to achieve a 
compelling interest. The day is long past when a discriminatory

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voting scheme can be rationalized by the mere recitation of a 
series of steps suggestive of some rational purpose or purposes. 
Each underlying interest asserted must itself be analyzed as to 
whether it is compelling and whether the decision is necessary 
to accomplish a compelling governmental interest. Westbrook v. 
Mihaly, 2 Cal.3d at 785; Castro v. State of California, 2 Cal.3d 
at 234. As demonstrated below, such an analysis reveals that 
respondents have no legal defense for their actions.

b. The Interest in Equalizing Population.
The fact that a closer approximation of population

equalization was accomplished, Return, 11 30a, by the 1983 
Redistricting is not in itself an adequate defense. The 
California Supreme Court has unequivocally stated that "an 
otherwise acceptable apportionment plan may fail to pass 
constitutional muster 'if designedly or otherwise,' it operates 
'to minimize or cancel out the voting strength of racial . . . 
elements of the voting population." Calderon, 4 Cal.3d at 260 
(citations omitted). If the rule were otherwise, any illicit 
reduction of minority voting strength no matter how egregious 
could be shielded from challenge by the simple expedient of 
achieving superficial population equalization.

c . The Interest in Dispersing Unincorporated 
Residents.

Respondents' primary defense is that the complex 
shifting of populations between Districts 3 and 4 was designed 
to disperse unincorporated residents among four, instead of 
three, supervisorial districts. Return at 1( 24. Respondents 
admit that this "governmental purpose" arose from the personal

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and political desires of Supervisor Bort, who was retiring. id. 
Specifically, Bort opposed any redistricting and would acquiesce
to it only if he was assured that District 4 would not be

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required to take on any more unincorporated area. Icl. He 
believed that representing unincorporated residents was 
burdensome because constituents in unincorporated areas look to 
their supervisors for assistance with their local governmental 
needs. Return at K 23. Bort, as well as Santana and Excell, 
believed that Cooper should share this administrative burden. 
Return at 11 24.

To satisfy Bort, respondents chose to move 30,000 
persons from the unincorporated areas of San Lorenzo and 
Ashland, along the northern boundary of District 2, into 
District 3. Because these areas were separated from the rest of 
District 3 by the City of San Leandro, which was in District 4, 
respondents state that it was necessary to split and move over a 
third of San Leandro, comprised of 23,000 persons, into 
District 3 in order to create a geographically contiguous 
district. Return at 11 26; see supra at note 14.

As an initial matter, there are substantial reasons to 
question whether the purported administrative convenience of 
dispersing unincorporated residents is anything but pretextual. 
First, the personal convenience of a supervisor to avoid 
representation of unincorporated areas because "[i]t* s a hell of 
a lot more work," Santana Depo., p. 11, see _id. at 11-13, is not 
a legitimate governmental interest. Second, assuming that the 
personal convenience of individual supervisors rises to the 
level of a governmental interest, there was no reason further

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to disperse unincorporated residents. Prior to the 
redistricting, unincorporated residents were already represented 
by a majority of the Board (Bort, Santana and Excell). Third,

• -r

it is implausible to justify the splitting of San Leandro and 
the addition of 23,000 residents to District 3 with the sole 
reason that it was necessary to provide a land bridge to 30,000 
unincorporated residents. Fourth, it is questionable whether 
further splitting unincorporated residents benefits them. Both 
the Elections Code and the County Charter contemplate enhancing 
"communities of interest" by keeping such communities intact, 
not by dispersion. See supra at p. 52. Thus, it is not at all 
clear that residents of unincorporated areas will benefit from 
representation by Supervisor Cooper who has previously 
represented only incorporated areas of Oakland and Alameda. 
District 3 as redistricted remains an overwhelmingly 
incorporated urban district. Fraley Exh. 27. Indeed, 
respondents do not argue that San Lorenzo and Ashland share a 
"community of interest" with the incorporated urban areas of 
District 3. Fifth, the unincorporated residents, only 10% of 
the County residents, are overwhelmingly white. Fraley Exh. 16. 
Thus, if the 1983 Redistricting deliberately conferred an 
advantage on a group of white residents at the expense of black 
residents of District 3, that fact cannot justify the 
Redistricting. It merely opens a fresh inquiry into whether an 
independent violation of the equal protection of the laws has 
occurred precisely because the Board preferred to disadvantage 
the interests of black residents so as to better serve the 
/

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interest of white unincorporated residents. See Gould v.
Grubb, 14 Cal.3d at 672-74.

Moreover, the distribution of unincorporated residents
for reasons of administrative convenience does not constitute a
state interest sufficiently compelling to justify violation of
minority voting rights. A strikingly similar defense was
definitively rejected by the Fifth Circuit in Kirksey v. Board
of Supervisors, 554 F.2d 139 (5th Cir.), cert, denied, 434 U.S.
968 (1977). The en banc court in Kirksey expressly overruled
the district court's determination that equalization of
population and jurisdiction over rural roads and bridges
justified the fracturing of the black urban population of the
County. The Court said there:

[I]n approving the supervisors' plan the 
district court overemphasized factors that 
must be subordinated to the constitutional 
interests at stake. The court assigned 
great importance to the equalization of land 
area and road and bridge mileage. . . .
Supervisors have no responsibility for roads 
and bridges in the City, only in the rural 
areas. The 1969 plan had equalized road and 
bridge mileage and responsibility between 
the supervisors, and they were satisfied 
with this arrangement. . . . The draftsmen
of the 1973 plan were so informed and sought 
to preserve this feature of the 1969 plan as 
far as possible. This aim was one of the 
reasons for leaving the 1969 district lines 
intact in the rural areas and redistricting 
by altering lines within the City, where the 
black population is concentrated. The court 
held that the purpose of the draftsmen was 
to achieve equalization of population with 
approximate equalization of road and bridge 
mileage, . . . and that to achieve this 
purpose it was necessary to divide the 
people of the City, black and white, among 
the five districts. . . . Thus, to preserve
the 1969 plan's equalization of rural road 
and bridge mileage as desired by the 
supervisors, the 1973 plan split up

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concentrated black urban areas. There was 
simply too much emphasis on the administra­
tive convenience of equal road and bridge 
responsibility at the expense of effective 
black minority participation in democracy-: 
Factors such as these may be considered in 
redistricting but they are not talismanic. 
"It is clear, however, that the mere fact 
that an apportionment plan may satisfy some 
legitimate governmental goals does not 
automatically immunize it from constitu­
tional attack on the ground that it has 
offended more fundamental criteria." 
Robinson v. Commissioners Court, 505 F.2d 
674 at 680 (CA5, 1974). Less fundamental 
concerns must be subordinated to the 
constitutional interests of the citizenry.

Id. at 151 (citations omitted) .
The California Supreme Court has similarly rejected 

arguments that concerns for administrative convenience justify 
unequal benefits to voters. See Gould v. Grubb, 14 Cal.3d 661, 
675 (1975). The Court recently said "the state's interest in 
limiting expenditures and administrative burdens is generally 
not of a compelling character." Citizens Against Forced 
Annexation v. Local Agency Formation Commission, 32 Cal.3d 816, 
825 (1982). There is thus no legal support for respondents' 
elevation of administrative workload above constitutional 
rights.

Moreover, the Redistricting Plan clearly was not 
necessary to achieve the interest of dispersing unincorporated 
residents. If the basic purpose of dispersion was to avoid 
further overburdening District 4 and Supervisor Bort with 
additional unincorporated resident constituents, that purpose 
could have been satisfied without the massive shift of 53,000 
white voters into District 3. The City of Dublin could have

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been transferred directly to District 4 from District 1. Excell 
Depo., Vol. I, p. 5. It was only because District 1 Supervisor 
Excell transferred a part of Fremont into District 2 rather than 
Dublin that it became "necessary" to move territory from Dis­
trict 2 to 4. Alternatively, even if territory had to be moved 
from District 2 to 3 or 4, it was not "necessary" to move 
unincorporated areas. The City of Hayward is also along the 
northern border of District 2. Portions of its population could 
have been shifted from District 2 into District 4, thereby 
satisfying Supervisor Bort's desire for trouble-free consti­
tuents and adjusting the necessary population. Moreover, even 
if it was somehow "necessary" to move unincorporated areas from 
District 2 to 3 or 4, the unincorporated areas could have been 
joined to District 3 by a narrow strip of the City of San 
Leandro without adding 23,000 voters.

d. The Interest in Preserving the Historical 
Numbering of the Districts.

Respondents offer the further justification that it 
was "logical" for District 2 to give its excess population to 
District 3 rather than to District 4 because of the historical 
numbering of the districts, i.e. , the number 3 comes after the 
number 2. Return at K 24. This governmental interest is 
completely frivolous. It is not a rational consideration, much 
less a compelling governmental interest that would justify the 
denial of petitioners' equal protection rights. It is, however, 
illustrative of respondents' cavalier disregard for the 
significance of the constitutional rights they have abridged in 
accomplishing their own political ends.

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The related claim that it was fair to add unincor­
porated areas to Supervisor Cooper's district because Supervisor 
Bort had received such areas in the 1975 redistricting, Return,
K 24, is similarly flawed. Such accommodations to personal 
proclivities of supervisors are not legitimate governmental 
interests, much less compelling or necessary.

e. The Interest in Maintaining Communities 
of Interest.

Respondents rationalize various decisions to shift 
populations in the 1983 Redistricting based upon the Board's 
alleged commitment to maintain communities of interest. Return 
at 30 (e) . There is no legal support for the proposition that 
this concern is a compelling state interest that would justify 
the denial of petitioners' equal protection rights and, as 
previously discussed, a rational legislative motive is 
insufficient to withstand strict scrutiny.

In addition, an analysis of the 1983 Redistricting 
reveals that the Board has no fixed definition of "community of 
interest" and that "community of interest" is nothing more than 
an ad hoc label that is conveniently applied to rationalize the 
Board's various political motives. As demonstrated below, where 
a Board member wanted to keep an area, there is deemed to be a 
"community of interest" that needs to be preserved. Conversely, 
if removing or splitting an area met the Board's desires, the 
purported justification is instead that the area would benefit 
from the representation by two supervisors, instead of one, 
irrespective of any expressed preferences of the voters in the 
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affected community. Viewed in this light, respondents' 
explanation lacks any principled foundation.

An example of this transparently self-serving justifi­
cation is Supervisor Excell's decision to split the City of 
Fremont and transfer a portion of it into District 2 rather than 
give up the City of Dublin, which could have been transferred 
intact to District 4. Excell reasoned that Dublin, on the one 
hand, did have a community of interest with the Livermore-Amador 
Valley and thus should be maintained within District 1 while, at 
the same time, he believed that the City of Fremont had no 
community of interest as a city and that splitting it in two 
would actually benefit it. Return at 1[ 21. "The City of 
Fremont would not be seriously affected if only a small portion 
of that City were moved to District 2 and would in fact benefit 
from having two supervisors politically sensitive to its needs." 
Id. Respondents offer this completely inconsistent rationale 
without any factual basis for the distinction and despite the 
factual record, which clearly demonstrates that the residents of 
Fremont and its mayor unanimously opposed the split of their 
city and strongly protested to the Board at the public hearing. 
Fraley Exh. 28; Public Hearing Trans., pp. 35-39. Indeed, 
Supervisor Excell admitted that he eliminated part of Fremont 
instead of Dublin from his district based solely upon a conver­
sation with his Fremont campaign manager, without conferring 
with either of these cities' officials or constituents. Excell 
Depo., Vol. I, pp. 24-25.

Respondents use a rationale no less inconsistent to 
justify the shift of population from District 2 to District 3

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and the shift of over a third of San Leandro into District 3 
from District 4. As previously noted, the Board had a viable 
alternative —  District 4 could have taken on City of Hayward 
residents instead of predominantly black East Oakland residents 
and satisfied the need not to increase the number of unincor­
porated residents in District 4 without diluting black votes.
See supra at pp. 70-71. Respondents answer this by arguing that 
the Board didn't want to split the City of Hayward, which has a 
community of interest, but found it acceptable to split the city 
of San Leandro, because that portion of San Leandro west of the 
Nimitz Freeway has "its own community of interest" independent 
from the rest of the city of San Leandro. Return at K 26. This 
distinction has no factual foundation and is asserted in the
face of protest by the mayor of San Leandro that this split

32/harmed that city's interests. See supra at p. 21.—
The shift of a portion of Castro Valley from Dis­

trict 4 to District 2 provides a further example of respondents' 
unprincipled "community of interest" rationalization. As 
previously discussed, District 2 was overpopulated and needed to 
disperse population to either District 3 or 4. Inexplicably,

32/— ' Respondents' further justification that the portion 
split off from San Leandro contained a low population density 
and thus would not materially reduce the city's voting strength 
within District 4 is also without merit. Return at 1[ 26.
First, this defense is factually incorrect —  the portion of the 
city moved contained 36% of the city's population. This 
argument also suggests that respondents believed that all of the 
City of San Leandro has a unified community of interest that 
respondents sought not to reduce in District 4. This reasoning 
is clearly inconsistent, however, with their rationale that the 
area moved into District 3 has its own independent community of 
interest, thus could be shifted without harm.

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7,390 persons were moved from District 4 to District 2. See 
supra at note 16. Respondents' answer is again devoid of 
factual or legal merit. They suggest this shift evened out the 
boundary and population between Districts 4 and 2. Return at 
U 25. "Evening boundaries" was not a redistricting priority, 
Return at 1[ 30, and not a criterion applied elsewhere in the 
Redistricting Plan. Further, as explained above, the population 
trend was actually the reverse. The increase was in the south 
and population needed to be shifted to Districts 3, 4, and 5.
In a now-familiar chorus, respondents again assert that this 
Castro Valley transfer was perfectly acceptable since the 
unincorporated area shared a community of interest with the City 
of Hayward —  an assertion without any factual foundation.
Return at 11 25. Respondents add a further non sequitur —  that 
the area shifted from District 4 to District 2 was within 
walking distance of Hayward City Hall. Return at 11 25. 
Petitioners are completely mystified how it could possibly 
matter that the City Hall of Hayward is within walking distance 
if the residents of the transferred area live in an 
unincorporated area within the County's sole jurisdiction. The 
County offices are in downtown Oakland.

Applying "active and critical analysis," Westbrook v. 
Mihaly, 2 Cal.3d at 784-85 n.37, the preservation of communities 
of interest, therefore, is not hardly a rational government 
interest, much less a compelling governmental interest. Rather, 
it is a politically convenient label completely devoid of 
internal consistency or principled application. Respondents,
/

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a fortiori, cannot show that the preservation of any particular 
"community of interest" was compelled by necessity.

f. The Interest in Enhancing Black Voting 
Strength.

Respondents argue that they adopted the 1983 Redis­
tricting because it would enhance black political power in the 
County by giving blacks a "substantial political base in Dis­
tricts Three, Four, and Five." Return at 11 29. Respondents 
assert that the Board was aware of the Plan's racial impact on 
blacks and intentionally moved them in order to improve black 
political strength. The testimony of the Board members them­
selves and other evidence, however, clearly refutes the existence 
of any benign racial purpose at the time of the redistricting. 
Moreover, there is no factual or legal support under state or 
federal law for the proposition that reduction of the voting 
strength of a minority group enhances its political power.

A review of the testimony of each of the Board members 
rebuts the existence of any benign intent. Supervisor Excell's 
testimony was that his only concern was that the lines drawn 
outside District 1 achieved population balance; he did not 
consider whether they would enhance black representation. He 
stated that he did not consider race when he voted for the 
redistricting and mistakenly thought it was illegal to do so. 
Excell Depo. Vol. II, p. 25-26.

Supervisor Bort testified that he was generally aware 
of the racial impact of the shifts between Districts 3 and 4 but 
that his only motivation was to ensure that unincorporated 
residents were dispersed. Bort Depo., pp. 80-83.

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Supervisor Santana stated that he had no goals for the 
redistricting. He was generally concerned with equalizing 
population and keeping cities intact. He said he didn't 
consider race. Santana Depo., pp. 6-16, 44.

Not even the testimony of Supervisor Cooper supports 
the defense that the Plan was adopted expressly to enhance black 
representation. Supervisor Cooper stated that he was aware of 
the racial composition of the areas transferred and that the 
Plan would reduce the black percentage in District 3 but that he 
did not know the exact percentages. Cooper Depo., pp. 31-33. 
However, he did not testify that he sought to enhance black 
political strength by shifting blacks into District 4. Cooper 
Depo., pp. 24-29. Instead, Cooper testified that he sought to 
minimize the admittedly adverse impact on blacks by retaining as 
much of East Oakland as possible and sacrificing Lake Merritt 
and Fruitvale. Cooper Depo., pp. 25-26.— ^

Thus, none of the Board's own testimony supports the 
defense that the Plan was adopted to enhance black voting 
strength by dispersing blacks among three districts. If this 
was their purpose, it seems still more unusual that the Board 
did not inform the public and solicit public reaction to that 
proposal. The purpose of enhancing black representation was

33/—  Supervisor George, of course, opposed the adopted plan and proposed an alternative that would have shifted virtually 
all the East Oakland blacks to District 4 so that their voting 
strength would remain intact, and Cooper could get-San Leandro 
and the unincorporated areas, as the rest of the Board had agreed. See supra at n.22.

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never raised nor discussed at the public hearing held October 4, 
1983, although the Board was specifically asked what the Plan's 
racial impact on East Oakland blacks would be by a represen­
tative of the Muleskinners Democratic Club. See supra at 
pp. 60-61. She received no reply from the Board. The defense 
of a benign racial intent is completely unsupported by the 
facts —  there is no evidence in the record either that this was 
truly one of the Board's motives or that the Plan would have the 
effect of improving black voting strength.

Respondents attempt to justify the reduction of black 
voting strength in District 3 as permitting blacks in the County 
as a whole to have more "influence" as minorities in three 
supervisorial districts —  District 3 where black representation 
is 31.3%, District 4 where black representation is 20%, and 
District 5 where black representation is 32.5% —  instead of 
maintaining their plurality in District 3. Even if true, 
respondents' argument provides cold comfort to blacks in 
District 3 who are now relegated to minority status in a 
district in which they came close to electing a black supervisor 
and in which they were a plurality. Respondents' argument, 
however, is clearly at odds with reality. At best, it is 
paternalistic.

If respondents are correct that a diminution in 
minority voting strength can be excused by the simple expedient 
of extolling the benefits of minority status, then no reduction 
in minority voting strength, no matter how egregious the 
circumstances, would ever be actionable. Calderon and numerous 
other voting rights cases that condemn any reduction of minority

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#5

voting strength, of course, hold otherwise. It is precisely 
because the black population in District 3 was "sharply
reduce[d]" that the redistricting is "constitutionally suspect,"

34/Calderon, 4 Cal.3d at 261.—
g. The Support of Black Politicians.

Respondents assert that the redistricting was 
justified by the support given it by several black political 
figures. Return at U 16. The record, on close analysis, does 
not support such a claim, and in any event, such a claim is 
legally inadequate.

Respondents argue that a black state assemblyman Elihu 
Harris and an unnamed colleague, whom Supervisor Cooper 
identified as Oakland Mayor Lionel Wilson, initiated the idea 
for redistricting District 3. Return at 1[ 16; Cooper Depo. , 
pp. 18-21. It is unclear exactly what Harris and Wilson 
proposed. If they proposed moving all East Oakland blacks from 
District 3 to District 4 in exchange for San Leandro and 
unincorporated areas, this was not done. Such a proposal, which 
was in fact proposed by Supervisor George, would have avoided 
fracturing black areas while accommodating Supervisor Cooper's 
desire to rid himself of black voters. George Decl., 11 5. 
Nevertheless, the proposal was a political compromise that was

— / The purpose of dispersing poor persons among three 
districts, Return at fl 29, was not raised at the public hearing 
nor was it mentioned by any supervisor during his deposition, 
except by Supervisor Cooper. Cooper Depo., p. 15*.- The same reasons that disqualify dispersing black voters among three 
districts as a compelling governmental interest apply as well to 
the interest of dispersing poor persons among three districts.

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not as salutary as maintaining District 3's integrity. _id. The
!

Board, however, rejected the George proposal. If, on the other 
hand, respondents assert that Harris and Wilson proposed what 
was in fact adopted, a fracturing of the East Oakland black 
community, then the claim is factually improbable since Mayor 
Wilson is clearly on the record as having condemned the 
redistricting as a "blatant rape of the rights and interest of 
thousands of Oakland residents." See supra at note 27.

In addition, Supervisor Cooper testified that he held 
a meeting on September 26, 1983 to which he invited local 
community leaders to discuss redistricting. Cooper Depo., 
pp. 7-8. Cooper has produced a list of the persons attending: 
twelve persons apart from himself and his aide, Charles Brown. 
Cooper Exh. 1. The general public was not invited, nor were 
minutes from the meeting maintained. The only evidence about 
what occurred at the meeting is from Supervisor Cooper himself. < 
His testimony did not indicate that those attending favored i
splitting blacks between Districts 3 and 4 as a means of 
enhancing black political strength, or that that argument was J
ever raised. Cooper testified that those present expressed a

i
preference that District 3 take as little of San Leandro as 
possible and were "more concerned about trying to keep as much 
of [East Oakland] together for a potential black candidate." 
Cooper Depo., pp. 28-29.

Assuming arguendo that some black political figures 
did sanction the redistricting, that fact does not justify the 
redistricting. In Buskey v. Oliver, 565 F.Supp. 1473 (M.D.Ala. 
1983) , a councilmanic redistricting plan was challenged because

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it decreased the percentage of black voters in a black 
councilmember ' s district. Defendants claimed that the plan 
could not be discriminatory because another black councilmember 
backed the plan. The court nevertheless found the plan 
discriminatory, ruling that "[t]he use of a black person in 
effecting a purposefully discriminatory redistricting plan is 
insufficient by itself to save the plan from censure . . . "  565
F.Supp. at 1484. "Because of the many facets of human 
motivation, it would be unwise to presume as a matter of law 
that human beings of one definable group will not discriminate 
against other members of their group." Castenada v. Partida,
430 U.S. 482, 499 (1977) (jury discrimination against Mexican- 
Americans found although Mexican-Americans played a substantial 
role in selecting jury members); see McWilliams v. Escambia 
County School Board, 658 F.2d 326, 333 (5th Cir. 1981)
(employment discrimination action in which court ruled that 
"[t]he mere presence of blacks in the selection process is 
insufficient to rebut a prima facie case of purposeful 
discrimination, even when blacks comprise a majority of those 
responsible for the allegedly discriminatory result.")

h. Whether the Redistricting Would Have
Occurred in the Absence of a Discriminatory 
Purpose.

If the Redistricting Plan was motivated only in part 
by a racially discriminatory purpose, respondents have "the 
burden of establishing that the same decision would have 
resulted even had the impermissible purpose not been 
considered." Arlington Heights, 429 U.S. at 270-71 n.21;

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Rybicki, 574 F.Supp. at 1107-08 . Respondents cannot meet this
"heavy burden," jjl. , with respect to any of the possible
purposes discussed above because, as to each, respondents are
unable to show that the Redistricting Plan was necessary to
achieve that purpose. See supra at Section V.E.2 (a)-(g).

Moreover, since the plan and the circumstances
surrounding its adoption support the conclusion that Supervisor
Cooper purposefully removed blacks from his district, it might
be argued that his purpose was simply "political" and not
racially discriminatory. It is conceivable that the Board
simply gerrymandered District 3 in order to protect Supervisor
Cooper's incumbency, removing constituents who did not support
him in the last election who were, coincidentally,
overwhelmingly black voters. Under the existing case law,
however, this explanation does not negate a finding of
intentional discrimination. The three-judge court in Rybicki v.
State Board of Elections, faced with facts similar to the case
at bar, specifically rejected the defense that a reapportionment
that fractured black voters was not invidiously motivated if
conceived to protect incumbencies. The court, recognizing the
complexity of ascertaining a discriminatory intent on the part
of a governmental body, stated:

[i]t may, of course, be argued that this 
manipulation of racial populations in the 
district was accomplished for the purpose of 
maintaining the incumbency of a white 
Senator and was not necessarily indicative 
of an intent to discriminate against blacks 
Qua blacks. We believe, however, that under 
the peculiar circumstances of this case,_.the 
requirements of incumbency are so closely 
intertwined with the need for racial dilu­
tion that an intent to maintain a safe,

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primarily white, district for Senator Joyce 
is virtually coterminous with a purpose to 
practice racial discrimination.

Rybicki, 574 F.Supp. at 1109. See also Karst, The Costs of 
Motive-Centered Inquiry, 15 San Diego L. Rev. 1163, 1164-65 
(1978) .

The California Supreme Court has also held, in
Legislature v. Reinecke 10 Cal.3d 396 (1973) that designing
electoral districts to preserve incumbency was impermissible:

[Incumbent-constituent relationships] should 
not be pursued by designing district bound­
aries to promote the reelection of incum­
bents. . . . [I]ncumbent-neutral districting
will not preclude each incumbent from seek­
ing reelection in a new district that will 
contain a substantial part of his former 
constituency. Moreover, each incumbent will 
retain the advantage of running as a sitting 
congressman or state legislator, as the case 
may be. To go further and to give incum­
bents the additional advantage of district­
ing designed to preserve the status quo 
would be unfair both to nonincumbent candi­
dates and to the electors of the new 
districts who wished to support such candi­
dates .

Id. at 402-03. In Gould v. Grubb, the Supreme Court invalidated 
an incumbent-first ballot placement provision because it 
impermissibly diluted the vote of the supporters of non­
incumbents in violation of equal protection. The Court said 
there:

[W]e emphatically reject the notion that the 
government may consciously choose to favor 
the election of incumbents over nonincum­
bents in a manner which distorts the prefer­
ences of participating voters.

Gould, 14 Cal.3d at 673.
/
/

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VI. CONCLUSION.
For the above reasons and upon the foregoing 

authority, the Court should issue a peremptory writ of mandate 
directing the Board of Supervisors to rescind the discriminatory 
redistricting scheme, and either return to the pre-existing 
district boundaries or adopt a constitutionally valid plan that 
does not fracture black areas or otherwise reduce black voting 
strength in District 3.
Dated: July 12, 1984

Respectfully submitted,
BILL LANN LEE 
MARILYN 0. TESAURO 
JOCELYN D. LARKIN

ROBERT ATKINS
Erickson, Beasley & Hewitt

ROBERT ATKINS

Attorneys for Petitioners 
and Plaintiffs

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DISTRICT BOUNDARIES 
PRIOR TO

THE 1983 REDISTRICTING
'V—̂ i ®_ntra COSTA ~ ^1 .BOUNTYAL^ME da county -------- ---

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S C A LE  IN F E E T

MAPI
LAMEDA COUNTY

CENSUS TRACTS for 1980
TH E IN IT IA L  D IG IT 4 H A S  B E E N  O M ITTED  
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DISTRICT BOUNDARIES 
AFTER

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CENSUS TRACTS for 1980
TH E  IN IT IA L  O lG lT 4 . H A S  B E E N  O M lT TEO  
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REMOVED FROM DISTRICT 
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4000 8000 l?QOO 16000 20000

SCALE IN FEET

ALAMEDA COUNTY
CENSUS TRACTS for 1980
Th e  i n i t i a l  Di g i t  4 M AS B E E N  O M iT TEO



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CERTIFICATE OF PERSONAL SERVICE

I, ROBERT ATKINS, declare and say:
That I am an attorney for petitioners and plaintiffs 

in the above-entitled action.
That on July 13, 1984, I personally served the

attached MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PEREMPTORY WRIT OF MANDATE and attached RECORD
EXCERPTS upon counsel for respondents herein, by delivering a
true copy thereof to:

RICHARD J. MOORE 
County Counsel 
DOUGLAS HICKLING 
KELVIN H. BOOTY, JR.Assistants County Counsel 
County of Alameda 1221 Oak Street, Suite 463 
Oakland, California 94612

Executed this 13th day of July, 1984, at San 
Francisco, California.

I declare under penalty of perjury that the foregoing 
is true and correct.