Legal Background

The purpose of the CVRA is to prevent an at-large election system from diluting minority voting power and impairing minorities from influencing the outcome of a race. The CVRA is found at California Elections Code sections 14025 through 14032.

The CVRA provides,

"An at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class..." Section 14027. A protected class means voters of the same race, color or language minority group. The Act provides that a violation occurs "if it is shown that racially polarized voting occurs in elections for members of the governing body of the [city] or in elections incorporating other electoral choices by the voters of the [city]." Section 14028. Racially polarized voting is a difference in election choices of voters of a protected class and the rest of the electorate. Section 14026(e). The methods of analyzing voting behavior that have been accepted by federal courts in deciding cases under the federal Voting Rights Act of 1965 may be used to prove a violation of the state Act. Id.

The CVRA was signed into law in 2002. The law's intent was to expand protections against vote dilution over those provided by the federal Voting Rights Act of 1965. The passage of the CVRA has made it easier for plaintiffs to prevail in lawsuits against public entities that elect their members to its governing body through "at-large" elections. "At-large" elections are elections where each member of the governing body is elected by and represents voters within the entire city, rather than specific "districts" within the city. Generally, a plaintiff need only to prove the existence of "racially polarized voting" to establish a violation of the CVRA. Proof of intent on the part of voters or elected officials to discriminate against a protected class is not required.

On September 28, 2016, the Governor signed AB 350 into law, codified as Elections Code section 10010 (effective on January 1, 2017). The legislation attempts to provide a "safe harbor" from CVRA litigation for cities that choose to voluntarily transition to a district election system.

According to AB 350, if a city receives a demand letter, the city is given 45 days of protection from litigation to assess its situation. If within that 45 days a city adopts a resolution declaring the Council's intent to transition from "at-large" to "district-based" elections, outlining specific steps to be undertaken to facilitate the transition, and estimating a time frame for action, then a potential plaintiff is prohibited from filing a CVRA action for an additional 90-day period.

Thus, the legislation provides time (a safe harbor) for the city to assess and implement a transition to a district-based election system before a lawsuit may be filed. The legislation sets forth a number of steps a city must take in the effort to assess and transition to a district-based election system, including five (5) public hearings. Under AB 350, a city's liability is capped at $30,000 (adjusted annually) if it follows this process after receiving a CVRA notice letter, and the plaintiff shows financial documentation that these costs were actually incurred.

Should the Vallejo City Council choose to adopt a Resolution of Intent to establish district-based elections, it will have an opportunity to determine the number of districts to be formed, how their boundaries are defined, whether to have a directly elected Mayor, and the timing and sequence of district elections. By law, there is no ability to cut short or extend the terms of sitting councilmembers through this process. In other words, under our current 7-member legislative body composition, the City Council would choose between six districts/councilmembers with a directly elected Mayor, or seven districts/councilmembers with each councilmember serving as mayor on a rotating basis.

As stated above, under AB 350, if a demand letter is received, the City has 45 days to respond. Assuming an affirmative vote to move to district elections, the City has another 90 days to complete the districting process. During that time, the City must hold two public hearings for input on district composition before maps are drawn; release draft maps at least seven days before the next public hearing, and hold two public hearings on maps; and then adopt an enacting ordinance at a public hearing. Once "by-district" elections are implemented, citizens would only be voting for one candidate to represent their district and possibly a mayoral candidate that represents the entire city.

In Vallejo's case, that 'safe harbor' deadline has been extended to April 30, 2019, by agreement so the City has until then to adopt an ordinance to transition to district-based elections in order to avoid litigation.

CVRA CASE STUDIES

There are very few court cases on the California Voting Rights Act.

In 2004, the city of Modesto was sued by a group of Latino voters claiming the city's at-large voting system for electing city councilmembers diluted their votes. In Sanchez v. City of Modesto, Modesto challenged the claim arguing that the CVRA was unconstitutional on its face because it involved racial discrimination. After two years of litigation, the Court of Appeal sided with plaintiffs, upholding the CVRA, finding that it was a race neutral law and passed constitutional muster. In the end, Modesto settled for about $3 million and switched to by-district elections.

In 2013, the most detailed - and therefore the most educational case was decided. In Jauregui v. City of Palmdale, the city received a litigation threat letter from Mr. Shenkman, who noted that even with a 15% black population and 55% Hispanic population in Palmdale, in the prior decade only one Hispanic was elected and no black person was elected to the city council. When city government did nothing in response to the letter, three plaintiffs represented by Shenkman filed a lawsuit. A bench trial was held, where statisticians gave their opinions based on city demographic data, voting conduct by precinct, candidate data, and election results. The data indicated the occurrence of racially polarized voting.

The judge in Palmdale determined the at-large system of electing councilmembers violated the California Voting Rights Act. The judge did note that a failure by minority candidates to be elected is not enough by itself to demonstrate racially polarized voting. While the judge set further hearings to decide the remedy for the violation, a pending at-large election proceeded despite efforts by plaintiffs to stop it. The city appealed the trial court decision and lost. The city argued that, as a charter city, it has sovereignty over municipal affairs and elections are a municipal affair. The court disagreed, holding that the constitutionally based protection against race-based dilution of voter rights is a matter of statewide concern, and so is the integrity of city council elections. The city also argued that the act cannot apply to charter cities because the California Constitution gives cities plenary authority over municipal elections. The court disagreed, again on the basis of the statewide concern. Ultimately, after three years of litigation and unsuccessful appeals, City of Palmdale settled the lawsuit by agreeing to pay more than $4 million in attorney's fees, move elections to coincide with the federal general election, and divide the city into four districts. Since City of Palmdale decision, no city has ever won a CVRA challenge against its at-large method of election.

As a result of this legal landscape at least 88 cities have made the change to by-district elections. As a result, many cities, school districts and special districts throughout the state have increasingly been facing legal challenges to their "at-large" election systems by Shenkman & Hughes. Almost all have settled claims out of court by agreeing to voluntarily change to district-based elections. Those that have fought CVRA challenges have ultimately adopted, or have been forced to adopt, district-based elections. The CVRA grants a prevailing plaintiff the right to recover reasonable attorneys' fees and expert witness fees. This has resulted in payment of huge amounts of money in attorneys' fees by cities that have chosen to litigate the CVRA challenge. Recently, the City of Palmdale was ordered to pay $4.5 million in attorney's fees following an unsuccessful challenge to the CVRA.
Nevertheless, there are a couple of jurisdictions that have chosen to litigate, and whose electoral fate has yet to be determined.

On April 12, 2016, plaintiffs Pico Neighborhood Association, et al., filed a lawsuit against the City of Santa Monica alleging that its at-large system of elections violated the CVRA.

In Pico Neighborhood Association, et al. v. City of Santa Monica, the City argued that based on its 13% Latino population and the fact that not a single precinct is 'majority Latino' a district-based election system would dilute not enhance Latino voting strength. The City contends that proof of racially polarized voting alone should not be sufficient to establish a violation of the CVRA. Rather, the plaintiff should have to show that the at-large system has diluted the minority group's vote. Also, the City alleges that the establishment of district-based elections is not a constitutional remedy because it would separate voters on the basis of race, and thus would need to be 'narrowly tailored to accomplish a compelling state interest. The City argues that any system that attempts to group the City's Latino population in one district would constitute racial gerrymandering, and thus, not allowed. Also, the City argues that the plaintiffs cannot draw a connection between the City's at-large system of election and any impact on the Latino voting power in the City. Trial on this case began August 1, 2018, and a trial court decision is expected on October 25, 2018.

Also in Higginson v. Xavier Becerra, et al., the former mayor of the City of Poway filed a federal action against the City of Poway and Attorney General Becerra challenging the constitutionality of the CVRA in U.S. District Court for the Southern District of California. Poway had adopted a by-district elections process in response to a CVRA demand letter. The Mayor alleged that the City's adopted map violated the equal protection clause. The trial court granted Attorney General Becerra's motion to dismiss. However, the Ninth Circuit reversed and remanded, allowing Poway Mayor Higginson to bring an "as applied" challenge to the new by-district process on the grounds that it is an unconstitutional violation of the "equal protection" clause. The matter is still pending.

VOLUNTARY CHANGE

The City Council is currently considering voluntarily transitioning to "by-district" elections. This has been prompted by letters received from two sources: An inquiry from MALDEF (Mexican American Legal Defense Fund) and a litigation threat from Shenkman & Hughes, a law firm out of Malibu, California. While MALDEF had already engaged with local citizens to evaluate whether discrimination in elections was occurring, Mr. Shenkman-- who has made a practice of actively suing cities, school districts and special districts alleging violations of the CVRA - sent an official demand letter. Copies of the letters are posted here.

In response to MALDEF's letter, the City retained demographer Doug Johnson of NDC, who has been utilized by numerous cities, including the City of Palmdale. NDC reviewed and analyzed data from each voting precinct in the City for the 2013 and 2016 elections, and data from the American Community Survey of the U.S. Census Bureau. As an initial observation, he notes there is no pocket in the City with a heavy concentration of any one race or ethnicity.

The City Council could choose to maintain at-large elections and defend a potential lawsuit, but the costs and attorneys' fees could be substantial.

Alternative, the City Council could choose to transition to a by-district elections. If the Council does transition to by-district elections, public input on what those districts would look like will occur. Then, the district maps would need to be drawn and adopted well in advance of the election occurring in 2020. Also, an ordinance setting forth the new process, ensuring that there is no conflict with the charter would need to be created. Transitional sequencing for current councilmembers who have been elected at-large would likely be a part of that ordinance.

In addition, the census will take place in 2020, with results in 2021. All cities with district elections will be required to redraw their districts based on the results of the census.

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