Garza v. County of Los Angeles

SCHROEDER, Circuit Judge: INTRODUCTION Hispanics in Los Angeles County, joined by the United States of America, filed this voting rights action in 1988 seeking a redrawing of the districts for the Los Ange-les County Board of Supervisors. They alleged that the existing boundaries, which had been drawn after the 1980 census, were gerrymandered boundaries that diluted Hispanic voting strength. They sought redistricting in order to create a district with a Hispanic majority for the 1990 Board of Supervisors election in which two board members were to be elected. The Voting Rights Act, 42 U.S.C. § 1973, forbids the imposition or application of any practice that would deny or abridge, on grounds of race or color, the right of any citizen to vote. In 1980, a plurality of the Supreme Court held that this provision prohibited only intentional discrimination, and would not allow minori — 766 — ties to challenge practices that, although not instituted with invidious intent, diluted minority votes in practice. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). In response to this decision, Congress amended the Voting Rights Act in 1982 to add language indicating that the Act forbids not only intentional discrimination, but also any practice shown to have a disparate impact on minority voting strength. See 42 U.S.C. § 1973(b). Thus, after the 1982 amendment, the Voting Rights Act can be violated by both intentional discrimination in the drawing of district lines and facially neutral apportionment schemes that have the effect of diluting minority votes. To the extent that a redistricting plan deliberately minimizes minority political power, it may violate both the Voting Rights Act and the Equal Protection Clause of the fourteenth amendment. See Bolden, 446 U.S. at 66-67, 100 S.Ct. at 1499. The plaintiffs in this case claimed that because the County had engaged in intentional discrimination in the drawing of district lines in 1981, the resulting boundaries violated both the Voting Rights Act and the Equal Protection Clause. They further claimed that, whether or not the vote dilution was intentional, the effect of the County’s districting plan was the reduction of Hispanic electoral power in violation of the newly amended Voting Rights Act. The district court held a three-month bench trial. At its conclusion the district court found that the County had engaged in intentional discrimination in the 1981 reapportionment, as it had in prior reappor-tionments, deliberately diluting the strength of the Hispanic vote. It also found that, regardless of intentional discrimination, the County’s reapportionment plan violated the Voting Rights Act because it had the effect of diluting Hispanic voting strength. Finally, it found that, based on post-census data, it was possible to grant the remedy that the plaintiffs sought, which was a redistricting in which one of the five districts would have a Hispanic voting majority. It ordered the County to propose such a redistricting. In its findings, the district court detailed the recent history of the Los Angeles County Board of Supervisors and the voting procedures by which it has been elected. At least since the beginning of this century, the Board has always consisted of five members, elected in even-numbered years to serve four-year terms. These elections are staggered so that two supervisors are elected one year, and three are elected two years later. Supervisors are elected in non-partisan elections, and a candidate must receive a majority of the votes cast in order to win. If no candidate receives such a majority, the two candidates who receive the highest number of votes must engage in a runoff contest. The district court found persuasive the evidence showing that the Board had engaged in intentional discrimination in redis-trictings that it undertook in 1959, 1965 and 1971. The district court further found that the 1981 redistricting was calculated at least in part to keep the effects of those prior discriminatory reapportionments in place, as well as to prevent Hispanics from attaining a majority in any district in the future. The findings of the district court on the question of intentional discrimination are set forth in the margin.1 After — 768 — entering these findings and conclusions of law, the district court gave the County the opportunity to propose a new plan, as required by Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978). Under the Los Angeles County Charter, any redistricting must be approved by four of the five members of the Board. In response to the court’s order directing the County to propose a plan, three Board members submitted a proposal. The district court rejected that proposal with findings to support its conclusion that the proposal was less than a good faith effort to remedy the violations found in the existing districting. The court considered other proposals. On August 6 it accepted and imposed a plan which creates a district in which the majority of the voting age citizen population is Hispanic. The County then appealed and this court ordered the matter handled on an expedited basis. There is a second appeal before us. It is from the district court’s denial of a motion — 769 — to intervene in the main case. During the course of the proceedings, there was a primary election under the existing districting plan. The incumbent supervisor, Edmund Edelman, received a majority of the votes in District 3, and thereby won that seat. In the District 1 contest, the incumbent did not seek reelection. No candidate received the required majority of the votes; therefore, the two front runners, Sarah Flores and Gregory O’Brien, were scheduled to compete in a runoff election on November 6, 1990. During the remedial phase of these proceedings, one of those candidates, Sarah Flores, sought to intervene in this action in order to oppose any redistricting plan which would result in the need for a new primary election in which additional candidates could run for the seat she was seeking in District 1. The district court denied her petition to intervene and she appeals from that denial. We have jurisdiction of her appeal pursuant to 28 U.S.C. § 1291. See California v. Block, 690 F.2d 753, 776 (9th Cir.1982) (denial of motion to intervene is an appealable order). I. The County Appeal — Liability Plaintiffs filed this action in order to require the imposition of new district lines for the 1990 election of supervisors. The record shows without serious dispute that at the time of the decennial redistricting in 1981, it was not possible to draw a district map, with roughly equal population in each district, that contained a district with a majority of Hispanic voters. The district court found, however, that the County in 1981, as part of a course of conduct that began decades earlier, intentionally fragmented the Hispanic population among the various districts in order to dilute the effect of the Hispanic vote in future elections and preserve incumbencies of the Anglo members of the Board of Supervisors. The evidence in the record also shows that at the time that this action was filed it was possible to draw lines for five districts of roughly equal population size, as required by state law, with one single-member district having a majority of Hispanic voters. The district court found the County liable for vote dilution on two separate theories. It found that the County had adopted and applied a redistricting plan that resulted in dilution of Hispanic voting power in violation of Section 2. It also found that the County, by establishing and maintaining the plan, had intentionally discriminated against Hispanics in violation of Section 2 and the Equal Protection clause of the fourteenth amendment. In this appeal, the County’s threshold argument is that districts drawn in 1981 are lawful, regardless of any intentional or unintentional dilution of minority voting strength, because at the time they were drawn there could be no single-member district with a majority of minority voters. The County asks us to extract from the Supreme Court’s leading decision in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and subsequent cases in this and other circuits, the principle that there can be no successful challenge to a districting system unless the minority challenging that system can show that it could, at the time of districting, constitute a voter majority in a single-member district. In response to this position, the appellees argue that no majority requirement should be imposed where, as here, there has been intentional dilution of minority voting strength. The County thus also challenges the sufficiency of the district court’s findings with regard to intent. We hold that, to the extent that Gingles does require a majority showing, it does so only in a case where there has been no proof of intentional dilution of minority voting strength. We affirm the district court on the basis of its holding that the County engaged in intentional discrimination at the time the challenged districts were drawn. A. The Background and Effect of Gingles In 1982, Congress amended Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, to provide minority groups a remedy for vote dilution without requiring a showing that the majority engaged in in — 770 — tentional discrimination. Congress set forth a non-exhaustive list of factors to guide courts in determining whether there had been a Section 2 violation. S.Rep. No. 417, 97th Cong., 2d Sess., pt. I at 28-29, U.S.Code Cong. & Admin.News 1982, pp. 206-207. Congress indicated that in applying these factors, courts should engage in a “searching practical evaluation of the ‘past and present reality'" of the political system in question. Id. at 30, U.S.Code Cong. & Admin.News 1982, p. 208. Creation of this “results” test for discrimination under Section 2 did not affect the remedies under Section 2 for intentional discrimination. Id. at 27. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court discussed the meaning of the new amendment. While noting the factors the Senate had set out as indicators of impermissible vote dilution, it stated that a court must look to the totality of the circumstances in considering a vote dilution claim. It also established three preconditions for liability under the amendment to Section 2 for claims based only on discriminatory effects: (1) geographical compactness of the minority group; (2) minority political cohesion; and (3) majority block voting. 478 U.S. at 50-51, 106 S.Ct. at 2766-67. The Gingles requirements were articulated in a much different context than this ease presents. Although the Gingles Court was aware of the history of discrimination against blacks, which was the minority there in question, the Court did not consider any claim that the disputed dis-tricting plan had been enacted deliberately to dilute the black vote. See 478 U.S. at 80, 106 S.Ct. at 2760-61. The claim at issue was that the multi-member districts that were being used, regardless of the intent with which they were created, had the effect of diluting the black vote. 478 U.S. at 39-41, 106 S.Ct. at 2781-82. Thus, the court instituted the “possibility of majority” requirement in a case in which it was asked to invalidate a political entity’s choice of a multi-member district system, and impose a system of single-member districts, and was not asked to find that the multi-member scheme had been set up with a discriminatory purpose in mind.2 An emphasis on showing a statistically significant disparate impact is typical of claims based on discriminatory effect as opposed to discriminatory intent. In contrast, the district court in this case found that the County had adopted its current reapportionment plan at least in part with the intent to fragment the Hispanic population. See Findings at 44 No. 81. The court noted that continued fragmentation of the Hispanic population had been at least one goal of each redistricting since 1959. Thus, the plaintiffs’ claim is not, as in Gingles, merely one alleging disparate impact of a seemingly neutral electoral scheme. Rather, it is one in which the plaintiffs have made out a claim of intentional dilution of their voting strength. — 771 — The County cites a number of cases in support of its argument that Gingles requires these plaintiffs to demonstrate that they could have constituted a majority in a single-member district as of 1981. None dealt with evidence of intentional discrimination. See, e.g., Romero v. City of Pomona, 883 F.2d 1418, 1422 (9th Cir.1989); McNeil v. Springfield Park, 851 F.2d 937 (7th Cir.1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989); Skorepa v. City of Chula Vista, 723 F.Supp. 1384 (S.D.Cal.1989). To impose the requirement the County urges would prevent any redress for dis-tricting which was deliberately designed to prevent minorities from electing representatives in future elections governed by that districting. This appears to us to be a result wholly contrary to Congress’ intent in enacting Section 2 of the Voting Rights Act and contrary to the equal protection principles embodied in the fourteenth amendment. B. The Findings of Intent We therefore turn to the appellants’ challenge to the district court’s rulings with respect to the intent of the supervisors in 1981. The County contends that the district court did not make sufficient findings on intentional discrimination. Focusing on language in Finding 177, quoted supra in note 1, the County claims that the district court found only that the supervisors in 1981 intended to perpetuate their own incumbencies. This is a mistaken reading of what the district court found. Although the court noted that “the Supervisors appear to have acted primarily on the political instinct of self-preservation,” the court also found that they chose fragmentation of the Hispanic voting population as the avenue by which to achieve this self-preservation. Finding No. 181. The supervisors intended to create the very discriminatory result that occurred. That intent was coupled with the intent to preserve incumbencies, but the discrimination need not be the sole goal in order to be unlawful. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Accordingly, the findings of the district court are adequate to support its conclusion of intentional discrimination, and the detailed factual findings are more than amply supported by evidence in the record. Even where there has been a showing of intentional discrimination, plaintiffs must show that they have been injured as a result. Although the showing of injury in cases involving discriminatory intent need not be as rigorous as in effects cases, some showing of injury must be made to assure that the district court can impose a meaningful remedy. That intent must result, according to the Voting Rights Act, in the political processes leading to nomination or election ... [not being] equally open to participation by members of a [protected] class ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives'of their choice. 42 U.S.C. § 1973(b). This language is echoed in the intentional discrimination case of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). There, in addition to intent, the Supreme Court required proof that “the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Id. at 766, 93 S.Ct. at 2339. See also Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971). Applying that standard to this case of intentional discrimination, we agree with the district court that the supervisors’ intentional splitting of the Hispanic core resulted in a situation in which Hispanics had less opportunity than did other county residents to participate in the political process and to elect legislators of their choice. We conclude, therefore, that this intentional discrimination violated both the Voting Rights Act and the Equal Protection Clause. — 772 — C. Laches The County claims that, because four rounds of elections have occurred since the 1981 reapportionment plan was instituted, and because a regular reapportionment is scheduled to occur in 1991, the plaintiffs’ claim for redistricting relief is barred on the ground of laches. It argues that substantial hardship will result from a redistricting now, when another regularly scheduled one is set to occur so closely on its heels. Furthermore, the County contends that the plaintiffs had no excuse for their delay in bringing suit. Therefore, it concludes, the suit should have been dismissed. Although plaintiffs could have filed an action as early as 1981 in order to enhance their ability to influence the result in a district in which they were then still a minority, their failure to do so does not constitute laches. The record here shows that the injury they suffered at that time has been getting progressively worse, because each election has deprived Hispanics of more and more of the power accumulated through increased population. Because of the ongoing nature of the violation, plaintiffs’ present claim ought not be barred by laches. II. The County Appeal — Remedy A. Redistricting Between Decennial Redistrictings The County contends that the district court erred in requiring it to redistrict now, at a point between regularly scheduled decennial reapportionments. Citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, reh’g denied, 379 U.S. 870, 85 S.Ct. 12, 13 L.Ed.2d 76 (1964), the County claims that decennial redistricting based upon census data is a “rule,” and that that case “was intended to avoid” the confusion that might be associated with more frequent reapportionments. The County misreads Reynolds. The Court in Reynolds instituted a requirement of periodic reapportionment based upon current population data. It stated that decennial reapportionment “would clearly meet the minimal requirements,” and less frequent reapportionment would “assuredly be constitutionally suspect.” 377 U.S. at 583-84, 84 S.Ct. at 1393. The Court further noted, however, that while more frequent apportionment was not constitutionally required, it would be “constitutionally permissible,” and even “practicably desirable.” Id. Thus, Reynolds did not institute a constitutional maximum frequency for reapportionment; rather, it set a floor below which such frequency may not constitutionally fall. B. Use of Post-1980 Population Data The County further claims that the district court erred in considering any data other than data from the 1980 census. Since the 1980 census data does not suggest the possibility of creating a Hispanic majority district, the County claims that the plaintiffs must lose in their 1988 claim to redistrict to provide for such a district. This claim, too, misinterprets the case law on which it purports to rest. Since Reynolds would permit redistricting between censuses, it appears to assume that post-census data may be used as a basis for such redistricting. Furthermore, in a subsequent opinion the Court noted with approval the possibility of using predictive data in addition to census data in designing decennial reapportionment plans. The court stated that “[situations may arise where substantial population shifts over such a period [the ten years between redistricting] can be anticipated. Where these shifts can be predicted with a high degree of accuracy, States that are redistricting may properly consider them.” Kirkpatrick v. Preisler, 394 U.S. 526, 535, 89 S.Ct. 1225, 1231, 22 L.Ed.2d 519, reh’g denied, 395 U.S. 917, 89 S.Ct. 1737, 23 L.Ed.2d 231 (1969). See also Burns v. Richardson, 384 U.S. 73, 91, 86 S.Ct. 1286, 1296, 16 L.Ed.2d 376 (1966) (“the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which ... substantial population equivalency is to be measured.”). The Court has never hinted that plaintiffs claiming present Voting Rights Act viola — 773 — tions should be required to wait until the next census before they can receive any remedy. The Fifth Circuit has held that non-census data may be considered in reapportion-ments between censuses if the relevant information cannot be obtained through census data. Westwego Citizens for Better Government v. Westwego, 906 F.2d 1042, 1045-46 (5th Cir.1990). Such a practice makes sense not only where, as in Westwe-go itself, census data on the population in question was unavailable because of the limited nature of the compilations and manipulations performed by the census; it is also logical where, as here, the census data is almost a decade old and therefore no longer accurate.3 The County contests the validity of the population statistics that the court employed. The district court’s findings, however, present an extensive review of the data itself and of the methodology that produced it, coupled with an inquiry into its validity. The County has not offered any reason why the district court should have rejected this data, other than the fact that it does not come from the census. Since it was permissible for the district court to rely on non-census data, we find that the district court did not err in its assessment of the size and geographic distribution of the Hispanic population in Los Angeles. The district court’s findings concerning vote dilution may be set aside only if they are clearly erroneous. Gingles, 478 U.S. at 79,106 S.Ct. at 2781. The findings at issue here were amply supported by the evidence that was before the district court. C. Apportionment Based on Population Rather than Voting Age Citizen Data The County contends that because the district court’s reapportionment plan employs statistics based upon the total population of the County, rather than the voting population, it is erroneous as a matter of law. The County points out that many Hispanics in the County are noncitizens, and suggests that therefore a redistricting plan based upon population alone, in which Hispanics are concentrated in one district, unconstitutionally weights the votes of citizens in that district more heavily than those of citizens in other districts. The district court adopted a plan with nearly equal numbers of persons in each district.4 The districts deviated in population by sixty-eight hundredths of one percent. (Findings and Order Regarding Remedial Redistricting Plan and Election Schedule, 4). The variance is larger when the number of voting age citizens in each district is considered.5 The County is correct in pointing out that Burns v. Richardson, 384 U.S. 73, 91-92, — 774 — 86 S.Ct. 1286, 1296-97, 16 L.Ed.2d 376 (1966), seems to permit states to consider the distribution of the voting population as well as that of the total population in constructing electoral districts. It does not, however, require states to do so. In fact, the Richardson Court expressly stated that “[t]he decision to include or exclude [aliens or other nonvoters from the apportionment base] involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” 384 U.S. at 92, 86 S.Ct. at 1296-97. Richardson does not overrule the portion of Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 1385, 12 L.Ed.2d 506 (1964), that held that apportionment for state legislatures must be made upon the basis of population. In Reynolds, 377 U.S. at 560-61, 84 S.Ct. at 1381, the Supreme Court applied to the apportionment of state legislative seats the standard enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), that “the fundamental principle of representative government is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a state.” This standard derives from the constitutional requirement that members of the House of Representatives are elected “by the people,” Reynolds, 377 U.S. at 560, 84 S.Ct. at 1381, from districts “founded on the aggregate number of inhabitants of each state” (James Madison, The Federalist, No. 54 at 369 (J. Cooke ed. 1961)); U.S. Const, art. I, § 2. The framers were aware that this apportionment and representation base would include categories of persons who were ineligible to vote — women, children, bound servants, convicts, the insane, and, at a later time, aliens. Fair v. Klutznick, 486 F.Supp. 564, 576 (D.D.C.1980). Nevertheless, they declared that government should represent all the people. In applying this principle, the Reynolds Court recognized that the people, including those who are ineligible to vote, form the basis for representative government. Thus population is an appropriate basis for state legislative apportionment. Furthermore, California state law requires districting to be accomplished on the basis of total population. California Elections Code § 35000. No part of the holding in Richardson, or in any other case cited by the appellants, suggests that the requirements imposed by such state laws may be unconstitutional. In fact, in Gaffney v. Cummings, 412 U.S. 735, 747, 93 S.Ct. 2321, 2328, 37 L.Ed.2d 298 (1973), the Court approved a redistricting based on total population, but with some deviations based upon consideration of political factors. In approving that plan, the Court expressly noted that districting based upon total population would lead to some disparities in the size of the eligible voting population among districts. These differences arise from the number of people ineligible to vote because of age, alienage, or non-residence, and because many people choose not to register or vote. Id. at 746-47, 93 S.Ct. at 2328. The Court made no intimation that such disparities would render those apportionment schemes constitutionally infirm. Even the limited latitude Gaffney affords state and local governments to depart from strict total population equality is unavailable here. The Supreme Court has held that unless a court ordering a redistricting plan can show that population variances are required by “significant state policies”, that court must devise a plan that provides for districts of equal population. Chapman v. Meier, 420 U.S. 1, 24, 95 S.Ct. 751, 764, 42 L.Ed.2d 766 (1975). Since California law requires equality of total population across districts, there are no locally relevant contrary policies. There is an even more important consideration. Basing districts on voters rather than total population results in serious population inequalities across districts. Residents of the more populous districts thus have less access to their elected representative. Those adversely affected are those who live in the districts with a greater percentage of non-voting populations, including aliens and children. Because there are more young people in the predominantly Hispanic District 1 (34.5% of the L.A. County Hispanic population (Findings of — 775 — Fact and Conclusions of Law re: County’s Remedial Plan, 5-6)), citizens of voting age, minors and others residing in the district will suffer diminishing access to government in a voter-based apportionment scheme. The purpose of redistricting is not only to protect the voting power of citizens; a coequal goal is to ensure “equal representation for equal numbers of people.” Kirkpatrick, 394 U.S. at 531, 89 S.Ct. at 1229. Interference with individuals’ free access to elected representatives impermissibly burdens their right to petition the government. Eastern Railroad President’s Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137, 81 S.Ct. 523, 539, 5 L.Ed.2d 464, reh’g denied, 365 U.S. 875, 81 S.Ct. 899, 5 L.Ed.2d 864 (1961). Since “the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives”, this right to petition is an important corollary to the right to be represented. Id. Non-citizens are entitled to various federal and local benefits, such as emergency medical care and pregnancy-related care provided by Los Angeles County. California Welfare and Institutions Code §§ 14007.5, 17000. As such, they have a right to petition their government for services and to influence how their tax dollars are spent. In this case, basing districts on voting population rather than total population would disproportionately affect these rights for people living in the Hispanic district. Such a plan would dilute the access of voting age citizens in that district to their representative, and would similarly abridge the right of aliens and minors to petition that representative. For over a century, the Supreme Court has recognized that aliens are “persons” within the meaning of the fourteenth amendment to the Constitution, entitled to equal protection. See Yick Wo v. Hopkins, 118 U.S. 356, 368, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). This equal protection right serves to allow political participation short of voting or holding a sensitive public office. See Bernal v. Fainter, 467 U.S. 216, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984) (law that would have denied alien the right to become a notary public and thereby assist in litigation for the benefit of migrant workers struck down under strict scrutiny equal protection analysis); Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (state’s interest in educating its electorate does not justify excluding aliens from state scholarship program, since aliens may participate in their communities in ways short of voting). Minors, too, have the right to political expression. Tinker v. Des Moines Community School Dist., 393 U.S. 503, 511-13, 89 S.Ct. 733, 739-40, 21 L.Ed.2d 731 (1969). To refuse to count people in constructing a districting plan ignores these rights in addition to burdening the political rights of voting age citizens in affected districts. The principles were well expressed by the California Supreme Court in its opinion in Calderon v. City of Los Angeles, 4 Cal.3d 251, 258-59, 93 Cal.Rptr. 361, 365-66, 481 P.2d 489 (1971), in holding that the United States Constitution requires apportionment by total population, not by voting population. Although we are, of course, constrained by the supremacy clause (U.S. Const., art VI, cl. 2) to follow decisions of the Supreme Court on matters of constitutional interpretation, we emphasize that we do so here not only from constitutional compulsion but also as a matter of conviction. Adherence to a population standard, rather than one based on registered voters, is more likely to guarantee that those who cannot or do not east a ballot may still have some voice in government. Thus a 17-year-old, who by state law is prohibited from voting, may still have strong views on the Vietnam War which he wishes to communicate to the elected representative from his area. Furthermore, much of a legislator’s time is devoted to providing services and information to his constituents, both voters and nonvoters. A district which, although large in population, has a low percentage of registered voters would, under a voter-based apportionment, have fewer representatives to provide such assistance — 776 — and to listen to concerned citizens, (footnote omitted). Judge Kozinski’s dissent would require districting on the basis of voting capability. Adoption of Judge Kozinski’s position would constitute a denial of equal protection to these Hispanic plaintiffs and rejection of a valued heritage. D. Rejection of the Supervisors’ Proposal After it found that the County’s districting plan was statutorily and constitutionally invalid, the district court gave the County 20 days to develop and propose a remedial plan of its own. The County submitted a plan, but the district court rejected it because, although it did create a district that had a Hispanic majority, it unnecessarily fragmented other Hispanic populations in the County. The district court found that such fragmentation posed an impediment to Hispanic political cohesiveness. Furthermore, the district court objected to the placement of the Hispanic majority district in a section controlled by a powerful incumbent, rather than in the one section that had a naturally occurring open seat, an open seat that was “in the heart of the Hispanic core.” For these reasons, the district court found that the County’s plan did not represent a good faith effort to remedy the violation. The County objects to the district court’s rejection of its proposal. It argues that the district court may not substitute “even what it considers to be an objectively superior plan for an otherwise constitutionally and legally valid plan,” citing Wright v. City of Houston, 806 F.2d 634 (5th Cir.1986); Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir.1985). However, there appear to be at least two fundamental reasons why the district court was not required to defer to the plan put forward by the supervisors in this case. First, as two of the supervisors themselves point out in their separate brief on the issue, the plan that the Board submitted to the district court could not, under the County’s charter, have been considered a Board Redistricting plan, because only three members voted in favor of it, not the four required for such matters. Los Ange-les County Charter, Art. II, Sec. 7 (1985). Thus, the proposal was not an act of legislation; rather, it was a suggestion by some members of the Board, entitled to consideration along with the other suggestions that had been received. Second, the district court found that it did not constitute a good faith attempt to remedy the violation because, inter alia, it used unnatural configurations in order to place an Anglo incumbent in the new Hispanic district, and it fragmented some Hispanic communities in other districts in the same manner in which the Board had deliberately diluted Hispanic influence in the past. E. The County’s Claim of Reverse Discrimination The County argues that, by deliberately creating a district with a Hispanic majority, the district court engaged in discrimination in favor of a minority group of the type forbidden by City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). It claims to have had a valid defense based upon the district court’s “creation of an equal protection violation in order to establish a Section 2 claim.” The district court erred, it contends, in refusing to address this constitutional defense. The County makes no suggestion, however, that the redistricting plan somehow dilutes the voting strength of the Anglo community. The deliberate construction of minority controlled voting districts is exactly what the Voting Rights Act authorizes. Such districting, whether worked by a court or by a political entity in the first instance, does not violate the constitution. United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). For that reason, the district court properly refused to consider the appellants’ constitutional defense. III. The Flores Appeal Sarah Flores appeals from the district court’s denial of her petition to intervene. Her petition was based upon her — 777 — interest in the outcome of the suit as a candidate in the election that stood to be invalidated. Under the plan adopted by the district court, she would be eligible to run for election in the new Hispanic district. Under the status quo, she was scheduled to participate in a runoff election against one other candidate. The district court dismissed her petition to intervene because it was untimely and because, in any event, the interests that she claimed to advocate either were already represented in the ease or had not been proven to exist. A party is entitled to intervene as of right under Fed.R.Civ.Pro. 24(a)(2) if that party moves to do so in a timely fashion and asserts an interest in the subject of the litigation, shows that the asserted interest stands to be impeded or impaired if the litigation goes forth without intervention, and demonstrates that the interest is not adequately represented by the parties to the litigation. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.1983). In determining whether a motion to intervene is timely, a court must consider whether intervention will cause delay that will prejudice the existing parties. United States v. Oregon, 745 F.2d 550, 552 (9th Cir.1984). Where a would-be intervenor does not demonstrate interests sufficiently weighty to warrant intervention as of right, the court may nevertheless consider eligibility for permissive intervention under Fed.R. Civ.Pro. 24(b)(2). Courts will allow such intervention where the intervenor raises a claim that has questions of law or fact in common with the main case, shows independent grounds for jurisdiction, and moves to intervene in a timely fashion. Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir.1989), aff'd, — U.S. -, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990). The decision to grant or deny this type of intervention is discretionary, subject to considerations of equity and judicial economy. Id. at 530-31. Sarah Flores sought both intervention as of right and, in the alternative, permissive intervention in the proceedings below. The district court denied intervention on either ground. This ruling was correct. Flores knew that this lawsuit was pending at the time when she decided to run in the election, and knew that part of the relief sought was a redistricting plan that could affect the outcome of that election. She did not petition to intervene until four months after she declared her candidacy, which was almost two years after the proceedings had been instituted. While Flores points out that the entry of a trial into a “new stage” may be the appropriate point for intervention, such is only the case where the new phase develops as a result of a change in the law or the factual circumstances. See United States v. Oregon, 745 F.2d 550 (9th Cir.1984). Here, the new phase came about in the general progression of the case to a close. It was a foreseeable part of a chain of events. Therefore, Flores’ delay cannot be excused on this ground. Introduction of a new party at that late stage could have resulted in irreversible prejudicial delay in a case where time was of the essence. IV. The Election A motions panel of this court entered an order which had the effect of staying the County’s election procedures pending our decision. Because the time schedule originally contemplated by the district court’s order can no longer be followed, we REMAND for the district court to impose a new schedule pursuant to which the primary, and if necessary, a general election can be conducted. Because it is imperative that such election procedures go forward as soon as practicable, the opinion of this panel shall constitute the mandate. The judgment of the district court on liability and its decision as to remedy are AFFIRMED. The scheduling provisions of the district court’s order of August 6, 1989 are VACATED and the matter is REMANDED for the purpose of determining the schedule for elections under the district court’s redistricting plan. We issue the mandate now because 42 U.S.C. § 1971(g) requires that voting rights cases “be in every way expedited.” — 778 — AFFIRMED IN PART; VACATED IN PART AND REMANDED. THE MANDATE SHALL ISSUE FORTHWITH. Footnotes [1] The relevant findings with regard to the 1959 Redistricting are as follows: 64. Prior to 1959, District 3 included Western Rosemead and did not include any portion of the San Fernando Valley, Beverly Hills, West Hollywood, West Los Angeles, or Eagle Rock. 65. The 1959 redistricting occurred less than six months after the November 1958 general election for the open position of District 3 Supervisor. Ernest Debs, a non-Hispanic, defeated Hispanic candidate Edward Roybal, by a margin of 52.2 percent to 47.8 percent. 66. Debs received 141,011 votes. Roybal received 128,974 votes. There were four recounts before Debs was finally determined to be the winner. 67. In 1959, Debs reported in a Supervi-sorial hearing that he and District 4 Supervisor Burton Chace agreed to shift Beverly Hills, West Hollywood, and West Los Angeles from District 4 to District 3. 68. The Board's action transferred between 50,000 to 100,000 voters from District 4 into District 3 and had the effect of substan — 767 — tially decreasing the proportion of Hispanic voters in District 3. 69. Dr. Kousser testified it was his opinion that Debs and Chace agreed to the transfer for two reasons. First, Chace was receptive to the agreement because it enabled him to eliminate Los Angeles City Councilwoman Rosa-line Wyman as a possible opponent in his upcoming 1960 bid for reelection. Debs welcomed the change because the move west allowed him to make District 3 more easily winnable against Roybal or another candidate who might appeal to Hispanic voters in the next election. The findings with regard to the 1965 Redistricting are as follows: 88. The Boundary Committee rejected a proposal to move Alhambra and San Gabriel, areas adjacent to growing Hispanic population, from District 1 to District 3. Instead, the committee recommended a complicated two-stage change which moved Alhambra and San Gabriel from Supervisor Bonnelli’s District 1 to Supervisor Dorn’s District 5, moved a section of the San Fernando Valley from District 5 to Supervisor Debs’ District 3, and moved Monterey Park and unincorporated South San Gabriel from District 1 to District 3. 89. Dr. Kousser testified that, in his opinion, the Board avoided transferring Alhambra and San Gabriel directly to District 3 because those areas were adjacent to areas of Hispanic population concentration and were becoming more Hispanic. The more complicated two-stage adjustments permitted the addition of heavily Anglo areas from the San Fernando Valley and offset the much more limited addition of Hispanic population gained by moving Monterey Park and the unincorporated area of South San Gabriel to District 3. The court’s findings with regard to the 1971 Redistricting are as follows: 109. In 1971, District 3 lost some areas with substantial Hispanic population on its eastern border. Western Rosemead was transferred from District 3 to District 1. A census tract in the City of San Gabriel was also transferred from District 3 to District 5. 110. George Marr, head of the Population Research Section of the Department of Regional Planning testified that he was surprised by the proposal to move a substantial portion of the San Fernando Valley from District 5 to District 3. Marr described the portion of the San Fernando Valley ultimately added to District 3 from District 5 as looking like "one of those Easter Island heads.” Marr developed the general feeling that Debs’ representative on the Boundary Committee had requested the additional area in the San Fernando Valley because the residents of the area were regarded as "our kind of people.” The court’s findings on the Overall Intent of Past Redistrictings are as follows: 112.The Court finds that the Board has redrawn the supervisorial boundaries over the period 1959-1971, at least in part, to avoid enhancing Hispanic voting strength in District 3, the district that has historically had the highest proportion of Hispanics and to make it less likely that a viable, well financed Hispanic opponent would seek office in that district. This finding is based on both direct and circumstantial evidence, including the finding that, since the defeat of Edward Roybal in 1959, no well-financed Hispanic or Spanish-surname candidate has run for election in District 3. 113. While Hispanic population was added to District 3 during the 1959-1971 redistrict-ings, the Court finds that the proportion of Spanish-surname persons added to District 3 has been lower than the Hispanic population proportion in the County as a whole. No individual area added was greater than 15.1 percent Spanish-surname. 114. Dating from the adoption of the County’s Charter in 1912 through the 1971 redistricting process, no Los Angeles County redistricting plan has created a supervisorial district in which Hispanic persons constituted a majority or a plurality of the total population. The court’s findings with regard to the 1981 Redistricting are as follows: 125. The individuals involved in the 1981 redistricting had demographic information available of population changes and trends in Los Angeles County from 1950 to 1980. It was readily apparent in 1980 that the Hispanic population was on the rise and growing rapidly and that the white non-Hispanic population was declining. 127. From a political perspective, since Hispanic population growth was most significant in Districts 1 and 3, if the 1971 boundaries were changed in any measurable way to eliminate the existing fragmentation, the incumbency of either Supervisor Schabarum or Supervisor Edelman would be most affected by a potential Hispanic candidate. 136. An analysis of the 1978 Supervisor election in District 3 was conducted after the Boundary Committee recommended a plan with an Hispanic population majority in District 3. The actual results of the analysis were never produced. Mr. Seymour did not rule out the possibility that he requested such an analysis and Supervisor Edelman testified that he "most probably” discussed the results of the 1978 election analysis with Mr. Seymour. 137. Peter Bonardi, a programmer with the Urban Research Section of the Data Processing Department in 1981 and a participant in the data analysis requested by Supervisor Edelman, stated that he was directed not to talk about the analysis of voting patterns and that an "atmosphere of ‘keep it quiet’ ” pervaded. 138. Supervisors Hahn and Edelman sought to maintain the existing lines. To this end, the Democratic minority agreed to a — 768 — transfer of population from District 3 to District 2. Supervisor Edelman acknowledged that he and Supervisor Hahn had worked out a transfer of population from the heavily Hispanic Pico-Union area on the southern border of District 3 to the northern end of District 2. 139. Supervisor Edelman knew that if the 1971 boundary lines were kept intact, the Hispanic community was going to remain essentially the same in terms of its division among the districts. 140. The Board departed from its past redistricting practice in 1981 and approved a contract with The Rose Institute for State and Local Government, a private entity, to perform specialized services and produce redistricting data at a cost of |30,000. 157. [Boundary Committee Members] Smith and Hoffenblum opposed the CFR [Chí-canos for Fair Representation] plan because the plan proposed increasing the Hispanic proportion in District 1 from 36 to 42 percent. Both Boundary Committee members perceived the CFR effort as intended to jeopardize the status of Supervisor Schabarum as well as that of the conservative majority. 158. Hoffenblum testified that one of the objectives of the Republican majority was to create an Hispanic seat without altering the ideological makeup of the Board. According to Hoffenblum, it was “self-evident” that if an Hispanic district was created in Supervisor Schabarum’s district it would impact on the Republican majority. 159. The proponents of the Smith and Hof-fenblum plans sought to gain areas of Republican strength such as La Mirada, Arcadia, Bradbury in Districts 4 and 5, while losing increasing Hispanic areas such as Alhambra or the predominantly black Compton and other liberal areas of Santa Monica and Venice. 162. Supervisor Edelman would not rule out the possibility that ethnic considerations played at least some part in the rejection by the Board majority of the CFR Plan. Moreover, the fact that CFR proposed a plan in which District 1 had a 42 percent Hispanic population was a possible basis for the rejection of the plan by the majority. Supervisor Schabarum would not accept a 45 or 50 percent Hispanic proportion in his district in 1981. 165. On September 24, 1981, prior to the Board’s adoption of the challenged plan, Board members met, two at a time in a series of private meetings in the anteroom adjacent to the board room, where they tried to reach agreement on a plan. 175. The plan adopted in 1981 retained the boundary between the First and the Third Supervisorial Districts, the districts that contain the largest proportions of Hispanics. In doing so, the 1981 Plan continued to split the Hispanic Core almost in half. 176. The Board appeared to ignore the three proposed plans which provided for a bare Hispanic population majority. 177. The Court finds that the Board of Supervisors, in adopting the 1981 redistricting plan, acted primarily with the objective of protecting and preserving the incumbencies of the five Supervisors or their political allies. 178. The Court finds that in 1981 the five members of the Board of Supervisors were aware that the plan which they eventually adopted would continue to fragment the Hispanic population and further impair the ability of Hispanics to gain representation on the Board. 179. The continued fragmentation of the Hispanic vote was a reasonably foreseeable consequence of the adoption of the 1981 Plan. 180. The Court finds that during the 1981 redistricting process, the Supervisors knew that the protection of their five Anglo incumbencies was inextricably linked to the continued fragmentation of the Hispanic Core. 181. The Supervisors appear to have acted primarily on the political instinct of self-preservation. The Court finds, however, that the Supervisors also intended what they knew to be the likely result of their actions and a prerequisite to self-preservation — the continued fragmentation of the Hispanic Core and the dilution of Hispanic voting strength. [2] Gingles has spawned confusion in the lower courts. The opinion explicitly reserved the question of whether the standards it set forth would apply to a claim in which minority plaintiffs alleged that an electoral practice impaired their ability to influence elections, as opposed to their ability to elect representatives. 478 U.S. at 46 n. 12, 106 S.Ct. at 2764 n. 12. Nevertheless, it has been applied to preclude such "ability to influence" claims, based upon plaintiffs’ failure to demonstrate such an ability to elect representatives under the Gingles criteria. See, e.g., McNeil v. Springfield Park, 851 F.2d 937 (7th Cir.1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989). See generally Abrams, “Raising Politics Up": Minority Political Participation and Section 2 of the Voting Rights Act, 63 N.Y.U.L.Rev. 449 (1988). On the other hand, some courts have dealt differently with the criteria articulated in Gingles when facing "ability to influence” claims. They have done so in opinions that "range from virtually ignoring the electoral standard or ignoring it entirely, to considering it a prerequisite to the application of the totality of the circumstances test [specified in the statute itself], to treating it as a, if not the, central element of the test.” Abrams, 63 N.Y.U.L.Rev. at 465 (citing United Latin Am. Citizens v. Midland Indep. School Dist., 812 F.2d 1494, 1496-98 (5th Cir.1987), Buckanaga v. Sisseton Indep. School. Dist., 804 F.2d 469, 471-72 (8th Cir.1986); Martin v. Allain, 658 F.Supp. 1183, 1199-1204 (S.D.Miss.1987)) (footnotes omitted). "[T]he language from Gingles that creates the ‘ability to elect’ standard may prove to be Gingles' more enduring and problematic legacy.” Abrams, 63 N.Y.U.L.Rev. at 468. [3] In McNeil v. Springfield Park District, 851 F.2d 937, 946 (7th Cir.1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989), the Seventh Circuit found that in order to prove an effects violation from post-census data, the data used must be of a clear and convincing nature, and that "estimates based on past trends are generally not sufficient to override ‘hard’ decennial census data.” We see no reason to impose this high standard in a case where intentional discrimination has been proved, and the data is merely to be used in fashioning a remedy. [4] District Total Pop. White Black Hispanic Other 1 1,779,835 12.4 2.1 71.2 14.3 2 1,775,665 15.0 38.6 35.3 11.1 3 1,768,124 60.9 3.9 25.5 9.7 4 1,776,240 53.9 4.3 26.6 15.2 5 1,780,224 57.1 5.9 24.3 12.6 Total 8,880,109 39.8 11.0 36.6 12.6 [5] District Total White Black Hispanic Other 1 707,651 25.4 3.5 59.4 'O * — < 2 922,180 23.8 50.8 17.1 ro oo 3 1,098,663 77.0 4.3 13.9 t-; ^ 4 1,081,089 67.5 4.4 19.7 co 5 1,088,388 69.8 6.2 18.1 o\ in Total 4,897,971 55.8 13.4 23.3 in P'-