SHENKMAN & HUGHES, PC 28905 Wight Road
Malibu, California 90265
(310) 457-0970
Attorneys Maibu, California [email protected] 1 2024 JUL 22 P 2: 35
CITY OF FOSTER CITY
COMMUNICA ONS/
VIA CERTIFIED MAIL CITY CLERK
July 15, 2024
Priscilla Schaus
Communications Director/City Clerk
Foster City
610 Foster City Blvd.
Foster City, CA 94404
Re: Violation of California Voting Rights Act
I write on behalf of Southwest Voter Registration Education Project, its members residing within Foster City ("Foster City" or "City") and Jim Lawrence. Foster City relies upon an at-large election system for electing candidates to its governing board. Moreover, voting within the City is racially polarized, resulting in minority vote dilution, and, therefore, the City's at-large elections violate the California Voting Rights Act of 2001 ("CVRA").
The CVRA disfavors the use of so-called "at-large" voting - an election method that permits voters of an entire jurisdiction to elect candidates to each open seat. See generally Sanchez v. City of Modesto (2006) 145 Cal.App.4' 660, 667 ("Sanchez"). For example, if the U.S.
Congress were elected through a nationwide at-large election, rather than through typical single-member districts, each voter could cast up to 435 votes and vote for any candidate in the country, not just the candidates in the voter's district, and the 435 candidates receiving the most nationwide votes would be elected. At-large elections thus allow a bare majority of voters to control every seat, not just the seats in a particular district or a proportional majority of seats.
Voting rights advocates have targeted "at-large" election schemes for decades, because they often result in "vote dilution," or the impairment of minority groups' ability to elect their preferred candidates or influence the outcome of elections, which occurs when the electorate votes in a racially polarized manner. See Thornburg v. Gingles, 478 U.S. 30, 46 (1986) ("Gingles"). The U.S. Supreme Court "has long recognized that multi-member districts and at-large voting schemes may operate to minimize or cancel out the voting strength" of minorities. Id. at 47; see also id. at 48, fn. 14 (at-large elections may also cause elected officials to "ignore [minority] interests without fear of political consequences"), citing January 12, 2023
Rogers v. Lodge, 458 U.S. 613, 623 (1982); White v. Register, 412 U.S. 755, 769 (1973). "IT]he majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters." Gingles, at 47. When racially polarized voting occurs, dividing the political unit into single-member districts, or some other appropriate remedy, may facilitate a minority group's ability to elect its preferred representatives. Rogers, at 616.
Section 2 of the federal Voting Rights Act ("FVRA"), 42 U.S.C. § 1973, which Congress enacted in 1965 and amended in 1982, targets, among other things, at-large election schemes. Gingles at 37; see also Boyd & Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History (1983) 40 Wash. & Lee L. Rev. 1347, 1402. Although enforcement of the FVRA was successful in many states, California was an exception. By enacting the CVRA, "[t]he Legislature intended to expand protections against vote dilution over those provided by the federal Voting Rights Act of 1965." Jauregui v. City of Palmdale (2014) 226 Cal. App. 4'h 781, 808. Thus, while the CVRA is similar to the FVRA in several respects, it is also different in several key respects, as the Legislature sought to remedy what it considered "restrictive interpretations given to the federal act." Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976(2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 2.
The California Legislature dispensed with the requirement in Gingles that a minority group demonstrate that it is sufficiently large and geographically compact to constitute a "majority-minority district." Sanchez, at 669. In Pico Neighborhood Association v. City of Santa Monica (August 24, 2023) 15 Cal.5" 292, the California Supreme Court recently confirmed this commonsense reading of the CVRA. Also see Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 3 ("Thus, this bill puts the voting rights horse (the discrimination issue) back where it sensibly belongs in front of the cart (what type of remedy is appropriate once racially polarized voting has been shown).")
To establish a violation of the CVRA, a plaintiff must generally show that "racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision." Elec. Code § 14028(a). The CVRA specifies the elections that are most probative: "elections in which at least one candidate is a member of a protected class or elections involving ballot measures, or other electoral choices that affect the rights and privileges of members of a protected class." Elec. Code § 14028(a). The CVRA also makes clear that "[e]lections conducted prior to the filing of an action ... are more probative to establish the existence of racially polarized voting than elections conducted after the filing of the action." Id.
Factors other than "racially polarized voting" that are required to make out a claim under the FVRA - under the "totality of the circumstances" test - "are probative, but not necessary January 12, 2023
factors to establish a violation of" the CVRA. Elec. Code § 14028(e). These "other factors" include "the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of at-large elections, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns." Id.
As of the most recent data released by the United States Census Department, Asian Americans comprise 53.1%, of the City's population of 33,806, though still a minority of voters within the City. Yet, Asians comprise a far lesser proportion of the City's governing board.
The City's at-large system dilutes the ability of Asians (a "protected class") - to elect candidates of their choice or otherwise influence the outcome of the City's elections. The City's election history is illustrative, particularly those involving Asian candidates (most relevant under the CVRA). In Foster City's most recent 2022 election, Richa Awasthi lost her bid for a seat on the Council despite significant support from Asian voters. This phenomenon is not a new one. In 2009 Asians in Foster City supported Wing Yu, and in 2007, Asian voters supported Huijun Ring, yet both lost due to a lack of support from non- Asian voters. These elections evidence vote dilution which is directly attributable to the City's unlawful at-large election system.
As you may be aware, in 2012, we sued the City of Palmdale for violating the CVRA. After an eight-day trial, we prevailed. After spending millions of dollars, a district-based remedy was ultimately imposed upon the Palmdale city council, with districts that combine all incumbents into one of the four districts.
Given the racially polarized elections for the city council in Foster City, we urge the City to voluntarily change its at-large system of electing its City Council. Otherwise, on behalf of residents within the jurisdiction, we will be forced to seek judicial relief. Please advise us no later than September 5, 2024 as to whether you would like to discuss a voluntary change to your current at-large system.
We look forward to your response.
Very truly yours,
Kevin I. Shenkman