STAFF REPORT
CITY OF BURBANK,
CITY ATTORNEY'S
OFFICE
DATE: January 24, 2023
TO: Justin Hess, City Manager
two,
FROM: Joseph McDougall, City Attorney
BY: Jill Vander Borght, Senior Assistant City Attorney
SUBJECT: Adoption of Resolution of Intent to Initiate a Transition to District Elections
RECOMMENDATION
Adopt A RESOLUTION OF THE COUNCIL OF THE CITY OF BURBANK DECLARING
ITS INTENT TO INITIATE PROCEDURES FOR A TRANSITION FROM AT-LARGE TO
DISTRICT-BASED COUNCIL MEMBER ELECTIONS PURSUANT TO ELECTIONS CODE SECTION 10010 AND GOVERNMENT CODE SECTION 34886, AUTHORIZING THE CITY ATTORNEY TO HIRE NATIONAL DEMOGRAPHICS CORPORATION; AND
APPROVING A TENTATIVE TIMELINE FOR CONDUCTING PUBLIC HEARINGS,
FORMULATING PROPOSED DISTRICT MAPS, AND PRESENTING A DRAFT ORDINANCE TO COUNCIL FOR DECISION (Attachment 1).
BACKGROUND
On August 23, 2022, the City received a notice of a potential violation of the California Voting Rights Act (CVRA) on behalf of a Latino voter in the City of Burbank, Mr. Nick Gutierrez (Elec. Code §§14027-14032; Attachment 2 - "CVRA Notice"). The CVRA Notice included a demand that the City change its at-large voting system to by-district. In a by- district electoral system, the City is divided into districts of equal population and only the voters residing in each district may vote for the candidates for City Council for that district, who themselves must also be residents and voters of that district. Currently, in our at- large voting electoral system, all voters in the City are entitled to vote for all candidates running for City Council.
One potential option in response is for the City Council to adopt a Resolution of Intent to transition from at-large voting to by-district voting by establishing single-member districts for City Council elections. Such a resolution would trigger a safe-harbor period of 90 days, 1 which can be extended for another 90 days during which the City Council would engage in the statutory process for creating single-member electoral districts. The bare-bones process requires a minimum of five public hearings and compliance with other criteria, timeframes, and procedures. At the earliest, by-district elections would be implemented in 2024. A tentative timeline is provided as Exhibit A to Attachment 1. The City Attorney may bring as-needed updates to the timeline on future Council consent agendas.
DISCUSSION
The CVRA was enacted in 2001 and applies only to at-large electoral systems. It alters established paradigms of proof and defenses under the federal Voting Rights Act, making it easier for plaintiffs to challenge the electoral system of any city or district that does not elect its governing board by-district. The CVRA also expands the ability of plaintiffs to recover their attorneys' fees and expenses, making such an award mandatory. In contrast, defendants, even if successful, cannot recover either attorneys' fees or costs.
The CVRA purports to protect electoral "influence" as well as the ability to elect chosen candidates. This means that minority groups that cannot form a majority in a single- member district may still file a lawsuit under the CVRA attempting to demonstrate that at- large voting impairs their electoral "influence."
It is not statistically possible to create a single-member electoral district in Burbank in which Latino eligible voters (citizens of voting age population or "VAP") constitute a majority. Both the Latino and the Asian populations of the City are disbursed throughout.
The total population of the City under the 2020 Census adjusted as required by state law is 107,614. The City is ~24.24% Latino in total population and ~21.69% Latino in CVAP.
The next largest non-Hispanic group is Asians at ~13.45% of total population and 11% of CVAP. The largest racial group, non-Hispanic White, is 56.13% of total population and
63.37% of CVAP.
The ability to create majority-Latino CVAP district is not a prerequisite under the CVRA, which protects the ability to "influence" elections. While Burbank has a long history of electing persons of Latino/a background to the City Council, smaller electoral areas or districts could increase the "influence" of Latino voters by concentrating voting strength so that it is greater than Latino strength city-wide. There may be other reasons to establish by-district elections for City Council. Studies reflect that smaller electoral areas could encourage more interest in running for City Council and possibly reduce the cost of running for City Council. Based on an initial analysis, the City Attorney's Office recommends Council adopt this Resolution of Intent to Initiate a Transition to District Elections.
The Resolution includes authorization to hire National Demographics Corporation (NDC) as a consultant demographer to help us complete a robust process for the community. 2 NDC is a full-service demographics company based in Glendale, California. NDC is a nationwide company, with a solid track record and strong ties to and an awareness of the local community. NDC is also being retained by the Burbank Unified School District (BUSD) as they undergo their transition to by-trustee district elections. NDC will partition the work for the City and BUSD within their office while allowing for potential cost savings and cooperation where at all possible. A summary of the Company's background and experience is provided in Attachment 3.
Issues Under the City Charter.
As a Charter City, our Charter dictates our elections process. Section 305 of the City Charter provides for "five (5) persons elected at-large" for the City Council and section 800 requires, "Except as otherwise provided by this Charter or ordinance, all municipal elections shall be held in accordance with the election laws of the State of California." The CVRA is a law of the State of California. Government Code section 34886 states:
"Notwithstanding Section 34871 or any other law, the legislative body of a city may adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor, as described in subdivisions (a) and (c) of Section 34871, without being required to submit the ordinance to the voters for approval. An ordinance adopted pursuant to this section shall comply with the requirements and criteria of Section 21601 or 21621 of the Elections Code, as applicable, and include a declaration that the change in the method of electing members of the legislative body is being made in furtherance of the purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of Division 14 of the Elections Code)."
Government Code section 34886 arguably could apply as it permits the City to transition to single-member districts without a vote to amend the City Charter "in furtherance of the purposes of the CVRA," but there is counterargument that the section does not expressly reference charter cities and therefore a charter amendment may be required.
As a result, and subsequent to a formal transition process, a Charter amendment measure could then be placed on the ballot at a statewide primary or general election to bring the Charter into conformance with Council's action and resolve the issue (Elec.
Code § 1415).
ENVIRONMENTAL REVIEW
This activity involves organizational and administrative activities of the government related to election procedures and eligibility requirements, and such internal procedural and eligibility changes have no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the 3 environment. As such, this action is not a "project" subject to the requirements of the California Environmental Quality Act (CEQA) 14 Cal. Code Regs § 15378.
FISCAL IMPACT
Staff is requesting City Council authority to amend the Fiscal Year (FY) 2022-23 Adopted Budget appropriating $100,000 account number
001.ND000.30010.0000.00000.000000 (General Fund, Non-Departmental, Unassigned Fund Balance) to expenditure account number 001.ND01A.62085.0000.00000.000000 (General Fund, Non-Departmental, Other Professional Services). Funds will be used to hire National Demographics Corporation (NDC) as a consultant and for the purpose and intent to transition from at-large voting to by-district voting by establishing single-member districts for City Council elections.
CONCLUSION
The City Attorney recommends the Council adopt the Resolution with the tentative calendar and approve the retention of the recommended consultant.
ATTACHMENTS
Attachment 1 - Resolution
Attachment 2 - California Voting Rights Act Notice
Attachment 3 - National Demographics Corporation Information Sheet 4