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Home My WebLink AboutCA District-Based City Elections PPTPOLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION The California Voting Rights Act & District-Based Elections A Presentation by: Chris Skinnell Nielsen Merksamer Parrinello Gross & Leoni, LLP to the City of San Rafael January 16, 2018 The California Voting Rights Act 1 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION The California Voting Rights Act of 2002 (CVRA) •Enacted in 2002 (S.B. 976) •Took effect January 1, 2003 •Elections Code §§14025 to 14032 •Prohibits at-large electoral systems that impair the right to vote of a protected class •Eliminates need to show majority-minority district possible •As MALDEF (Mexican-American Legal Defense and Education Fund) put it, the “[b]ill makes it easier for California minorities to challenge ‘at-large’ elections.” The California Voting Rights Act 2 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION The CVRA Safe Harbor “Single-member District” Elections A City that elects by “single-member district” has no liability under the CVRA. The California Voting Rights Act 3 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Costs of CVRA Litigation •Reasonable attorneys’ fee awards to prevailing plaintiffs are mandatory, but if the jurisdiction fixes the problem and the case is dismissed as moot, under California Supreme Court case law, fees will only be awarded if plaintiffs gave a reasonable opportunity to “fix” the problem before filing suit. •The City of Modesto is reported to have paid $1.7 million to its attorneys and $3.0 million to plaintiffs’ attorneys. The case never even went to trial, though it did get litigated through the appeals courts up to the U.S. Supreme Court. •City of Tulare reportedly paid $250,000. •Tulare Local Healthcare District paid $500,000 •City of Escondido: reportedly $585,000 •City of Palmdale: reportedly $4.5 million through briefing on appeal, no argument •City of Anaheim: $1.2 million in settlement long before trial •City of Whittier: ~ $1 million, although City defeated motion for preliminary injunction, and case eventually dismissed as moot •San Mateo County: $650,000 •See “Voting Rights Cases in California & Settlement Costs,” Antelope Valley Times (May 7, 2015), online at http://theavtimes.com/wp-content/uploads/2015/05/Voting_Rights_Cases_Costs.pdf. The California Voting Rights Act 4 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Assembly Bill 350 •Certain jurisdictions (City of Whittier, Cerritos Community College District) were sued by would-be plaintiffs, even after indicating their intention to move forward with district-based elections, because had they done so without litigation pending, no attorneys’ fees would have been due. •In response to lobbying by the League of California Cities and others, AB 350 adopted a requirement that would-be plaintiffs send a demand letter to a jurisdiction before filing suit, and provides jurisdictions with a grace period (up to 135 days) within which to adopt districts/trustee areas. If it does so, the plaintiffs’ attorneys can demand reimbursement of their costs without filing suit, but costs and fees are capped at $30,000. •If the jurisdiction does not comply within the grace period, the plaintiffs can file suit and seek reimbursement of costs and fees without the $30,000 cap. •If the jurisdiction commences the process before receiving a demand letter, it is not on the hook for any costs and fees to would-be plaintiffs. The California Voting Rights Act 5 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Elements of Process for Changing Electoral System •Retain demographic consultant •Update city demographics •Adopt districting criteria •Get community input at multiple public hearings •Draw maps/determine election sequencing for electoral districts •Note: terms of incumbents are not cut short •Additional public hearings prior to adoption of districting ordinance •Pass ordinance adopting districts The California Voting Rights Act 6 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION The California Voting Rights Act 7 Process: Sample Timeline Activity Timing Formally Resolve to Single-member Districts; Adopt Tentative Calendar; Related Steps including Public Outreach and Development of Website January 16, 2018 Two Public Hearings Before any Maps Are Drawn; Criteria Adopted After Second Hearing No more than 30 days apart Draft Maps and Election Rotation Published At least 7 days prior to next round of public hearings Two Additional Public Hearings to Receive Input on Maps No more than 45 days apart Final Public Hearing to Adopt Districting Ordinance At least 7 days after any changes to map proposed for adoption, and within 90 days of initial resolution Implement Adopted Single-Member Districts November 2020* Redraw District Boundaries Per State Law Summer 2021 * Due to change of terms from odd years to even years, San Rafael will not have City Council elections in November 2018 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Some Information About San Rafael The California Voting Rights Act 8 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Summary Demographics City of San Rafael -Summary Demographics Count Percent Total Population (2010 Census)57,713 Ideal District Size:14,429 Citizen Voting Age Population (2010-2014 Special Tabulation)36,702 Hispanic/Latino CVAP (2010-2014 Special Tabulation)4,132 11.26% Non-Hispanic White CVAP (2010-2014 Special Tabulation)28,709 78.22% Non-Hispanic Black CVAP (2010-2014 Special Tabulation)1,232 3.36% Non-Hispanic Asian CVAP (2010-2014 Special Tabulation)2,153 5.86% Non-Hispanic Pacific Islander CVAP (2010-2014 Special Tabulation)135 0.37% Non-Hispanic Indian CVAP (2010-2014 Special Tabulation)261 0.71% Non-Hispanic "Other" & Multi-racial CVAP (2010-2014 Special Tabulation)81 0.22% Total Registered Voters (2014 General Election)28,223 Spanish-Surnamed Registered Voters (2014 General Election)1,854 6.57% Total Actual Voters (2014 General Election)16,838 Spanish-Surnamed Actual Voters (2014 General Election)781 4.64% The California Voting Rights Act 9 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Options for Council Determination •Decision #1: Move to districts, or do nothing and wait for litigation to be filed, then aggressively defend. •Decision #2: If Decision #1 is to implement district-based elections, when? –Implement in 2020 using AB 350 process? •Limits potential liability. –Or following next Census, to be released in 2021. •Council districts must be readjusted following each Census. •No guarantee litigation will be avoided. The California Voting Rights Act 10 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION Questions? The California Voting Rights Act 11 POLITICAL & GOVERNMENT LAW ADVOCACY LITIGATION The California Voting Rights Act & District-Based Elections A Presentation by: Chris Skinnell Nielsen Merksamer Parrinello Gross & Leoni, LLP to the City of San Rafael January 16, 2018 The California Voting Rights Act 1