City of Gonzales
CITY ATTORNEY
STAFF REPORT
TO: Honorable Mayor Rios and City Council
DATE: July 18, 2022
FROM: Michael Rodriquez, City Attorney
THROUGH: Carmen Gil, Interim City Manager
SUBJECT: Consider Adoption of a Resolution Initiating a Transition to a District-Based Election System
RECOMMENDATION
It is recommended that the City Council receive the report and consider adoption of Resolution No. 2022- 54, A Resolution of the City Council of the City of Gonzales Initiating a Transition to a District-Based Election System.
BACKGROUND DISCUSSION
The City of Gonzales has received a letter from LULAC District 12, “respectfully demanding” that the City move from its at-large voting system to a district-based voting system. (See LULAC Letter, attached hereto as Attachment A.) The letter asserts that this change will afford all voters and protected groups in the City the equal opportunity to choose elected officials in the City, thereby allegedly bringing the City’s voting system into compliance with the California Voting Rights Act of 2001 (the “CVRA”). The letter is similar to letters sent by LULAC to other cities in Monterey County over the last several years.
The LULAC communication can clearly be interpreted as a threat of potential litigation should the City reject the requested change in the City’s voting process. It advises that all public agencies that have litigated the district conversion issue have lost, that agency litigation costs can be significant in these matters, and that municipalities on the losing end of a CVRA case must also pay the plaintiff’s fees and costs in the case, which can also be very high. The letter goes on to say that if a court finds that a given agency’s at-large voting system is in violation of the CVRA, it may impose a district-based system without significant agency input.
As detailed below, as a result of the receipt of the letter from LULAC, the Council must now decide whether the City should transition to a district-based election process.
AGENDA
ITEM
15 REVIEW & ANALYSIS
At-large vs. District-based Voting
The City of Gonzales currently elects its public officials by the at-large voting system. Under the CVRA, the definition of an at-large election includes: 1) where the voters of the entire jurisdiction elect the members of the governing body (the current Gonzales system); 2) where candidates are required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members of the governing body; and 3) where at-large elections are combined with district-based elections. By contrast, district-based voting systems are systems in which a city is divided into separate geographic districts, each of which elects its own representatives who reside in the district and are elected only by the voters residing in that district. Established districts must be balanced on voter population so that the system follows the “one person-one vote” rule. So for example, it would not make sense that a district comprised of 5000 voters and a district of 100 voters would each be represented by single representative. This would vest more power in each individual vote in the district with fewer voters.
Background on the CVRA
The CVRA, enacted in 2002, tiers off the previously established Federal Voting Rights Act (“FVRA”).
The FVRA was originally enacted to prohibit voting qualifications or requirements to voting, and standards, practices or procedures by any state or political subdivision meant to deny or adversely impact the right of a citizen to vote on the basis of race or color. The CVRA follows the intent of the FVRA, but provides a broader scope of protection to minority voters with a relaxed burden of proof.
The CVRA is premised on the notion that 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 constraint or reduction of the rights of the voters who are members of the protected class. A plaintiff in a CVRA case must only show that “racially polarized voting” occurs in the election of members of the governing body. Elections Code Section 14028. Racially polarized voting may be determined by “the extent to which candidates who are members of a protected class and who are preferred by voters of the protected class, as determined by an analysis of voting behavior, have been elected to the governing body.” Elections Code Sections 14026, 14208. Polarization can also be shown by other factors such as a history of discrimination in the involved territory, the extent to which members of a protected class bear the effect of past discrimination in areas such as education, employment and health, any or all of which may have served to hinder participation in the political process, and the use of subtle racial appeals in political campaigns. Elections Code Section 14028. Considering the expansive and somewhat ambiguous definition of “racially polarized voting” in statute, as well as case law interpretation thereof, a plaintiff in a CVRA action has a broad array of factors it can point to in order to establish a claim of discriminatory action and history. As such, it can be quite difficult for a public agency to defend against a claim of racially polarized voting.
CVRA Claims and History of Actions
Turning to process, any voter who is a member of a protected class and who resides in a political subdivision where a violation of the CVRA is alleged may bring an action. If a court determines that a violation has occurred, the court itself may implement remedies that are meant to address the violation, usually by imposing district-based elections or preventing the certification of elections that have taken place. In effect, losing a CVRA challenge has the potential to place a city in a position of having an outside party make significant districting decisions.
As was mentioned above, the threat of significant adverse consequences as a result of CVRA litigation is real and potentially very costly. With one notable exception, cities have had little success in defending CVRA actions. Moreover, in addition to its own attorneys’ fees, a city facing a voting rights challenge under the CVRA may be required to pay the plaintiff’s attorneys’ fees and costs. And a plaintiff need not actually prevail in the lawsuit in order to recover fees; plaintiffs may be entitled to fees and costs simply for filing a lawsuit if the lawsuit serves as a “catalyst for change” to a given voting system. By way of example, the City of Palmdale went to trial on the merits of a CVRA challenge, lost the case and paid $1.8 million for its defense and $4.7 million in plaintiff’s fees and costs. The City of Modesto spent about $1.8 million for its defense in a CVRA case and $3 million in plaintiff’s fees and costs. The City of Santa Monica is currently involved in CVRA litigation that has gone through trial court and appellate action, and is now before the California Supreme Court. To date, Santa Monica is estimated to have spent $7 million on its defense, with a plaintiff’s fees and cost demand of $22 million.
Given the number and variety of public entities that have unsuccessfully challenged a districting demand letter under the CVRA, and the potential costs of litigation, many entities have decided to simply relent and switch to district-based voting. Since the adoption of the CVRA in 2002, over 154 cities, 34 community college districts and 240 school districts have switched over to a district-based voting scheme, often under threat of litigation. In Monterey County alone, district-based voting is used for the election of County supervisors, the County Board of Education Trustees, the Hartnell College Governing Board of Trustees, the Monterey Peninsula College Governing Board of Trustees, the governing bodies of the Alisal Union, Chualar Union, Monterey Peninsula Unified, North Monterey County Unified, Salinas City and Salinas High school districts, and for the election of councilmembers in the cities of Greenfield, King City, Marina and Salinas. Action to convert to district-based voting is pending in the City of Monterey, and the City of Soledad will in all likelihood be taking action to move forward with a district-based transition within the next few weeks.
AB 350 Safe Harbor Provisions
In 2016, in light of the substantial costs imposed upon cities and other public entities in defending CVRA lawsuits, the state legislature adopted AB 350 which established code provisions making it easier for a general law city to transition from at-large to district-based elections and providing what is known as a “safe harbor” process to protect public agencies from expensive litigation.
Under the safe harbor scheme for district-based conversion:
1. A council must adopt a “resolution of intention” setting forth its intent to change its elections system from at-large to district-based. The City has 45 days from the date of a demand to take such action. A prospective plaintiff may not file a CVRA lawsuit until 45 days after the city receives a demand notice.
2. Once a city adopts a resolution of intention, it then has 90 days in which to approve the final districting map and an ordinance transitioning to district-based elections. The process for map adoption entails retaining a demographer to analyze data and prepare proposed districting maps, conducting two pre-draft public hearings concerning the maps, release of draft plans, two postdraft public hearings on the proposed district maps, and then finally adoption of the district maps by ordinance.
During the 90-day period referenced above, a plaintiff is prohibited from bringing an action against the city. If a city complies with a conversion within the 90-day timeframe, the prospective plaintiff that issued the transition demand may still make a demand for recovery of costs it incurred gathering evidence to prepare said demand, but the prospective plaintiff’s recovery of fees and attorney costs is capped at $30,000. Failure to meet either the 45- or 90-day time periods set forth above voids the cap on attorneys’ fees. However, the safe harbor provisions do allow a demanding party and an involved city to enter into an extension of the afore-referenced 90-day period.
While the safe-harbor process protects a city from excessive litigation costs, the expedited process is both demanding and time-consuming. While the City would certainly retain a consultant to help with establishing the appropriate districts, at a yet undetermined cost, staff anticipates that the transition to a district-based election system would be the focus of much of the City’s work for the next several months.
District-based Voting Benefits
While the purported benefits of district-based voting may be difficult to recognize when the City is being compelled to make a decision on the City’s voting process under threat of litigation, such benefits are worth considering. One of the biggest advantages of district-based elections is that they make it simpler and less expensive to run for office. A candidate just needs to run in his/her extended neighborhood and does not need to expend significant sums of money campaigning. Additionally, endorsements from persons within your own district become more important than endorsements from outside officials and organizations. All of these factors would appear to make it easier for newcomers to run for election.
District-based voting is also alleged to be of benefit to the residents of a given district in that it provides voters with an easily identifiable representative and ensures geographic representation. In recent years the City has heard complaints from a number of citizens that needs within their portion of the City have been ignored. Local representation through districting may serve to address this issue. Moreover, having local representation also has the potential to provide a greater level of accountability from elected officials – voters within a district are more likely to meet candidates in person and to have access to a local representative after an election.
All this being said, it has been argued that district-based elections may result in less-experienced persons being elected to a council and it may be harder to gain consensus on city-wide issues from designated representatives of parts rather than the whole of a city. However, gaining consensus from a variety of disparate views, whether they come from elected officers or public input, has always been a part of the democratic process and one of the challenges and duties of our elected officials. It seems doubtful that either one of these issues would serve as a real impediment to conducting city business.
City Options
1. Transition to District-Based Elections. Based on the history of unsuccessful challenges to CVRA claims, as well as significant potential litigation costs and the potential loss of control of the districting process, the Council may choose to move forward with transitioning from at-large to district-based voting. LULAC has indicated a willingness to work with the City by entering into a tolling agreement that will extend the period of time for effectuating the transition from 90 to 180 days. (Due to the City’s good-faith effort to analyze and consider the issues raised in the LULAC letter, LULAC would waive the requirement that City adopt its resolution initiating the transition within 45 days of receipt of a demand.) Staff has prepared a resolution that would initiate the transition process which includes a copy of a draft tolling agreement with LULAC, meant to be approved as to substantial form and content. If this is the path chosen, once the resolution is adopted, the City would need to retain a demographer and return to the Council with a transition plan and schedule.
The City would have several options in the number of districts to be formed, with the Mayor either continuing to be elected at-large or selected by the members of the City Council. See Government Code Sections 34871 and 34886. As noted above, this transition can be accomplished by way of an ordinance adopted by the Council and is not required to be submitted to the voters. A variation on this option would be to prepare an ordinance establishing the transition but to send it to the voters at an upcoming election.
However, this option would not allow the City to take advantage of the attorneys’ fees cap afforded by the safe harbor process. It also doesn’t address the issue of continued exposure to litigation if the voters reject district-based voting.
If the Council selects this option, Staff will provide further details of the districting process, City options, and a timeline for Council action.
2. Reject the Demand to Transition to District-Based Elections. The Council could choose to maintain the current at-large voting system and risk a lawsuit. In the recent case of Pico Neighborhood Assn. v.
City of Santa Monica, 51 Cal.App.5th 1002, now de-published after the California Supreme Court granted a petition for review, the City of Santa Monica chose to resist districting pressure and engaged in litigation. In ruling in the City’s favor, the appellate court held that a plaintiff’s burden in establishing a CVRA violation goes beyond proving racially polarized voting. Rather, the Court stated that in order to establish that an existing voting system adversely impacts minority voting, a plaintiff must provide evidence that any proposed change in the voting system is likely to make an actual difference in election results. In other words, that a shift from at-large to district-based voting would result in a different group of candidates being elected in subsequent elections. This is arguably a more difficult burden of proof than the standard established in previous CVRA cases, and if upheld, might have a significant impact on CVRA litigation.
However, as is set forth in detail above, the Council must consider that this option poses a real and significant exposure to excessive litigation fees, not only in terms of the City’s defense, but the possibility of having to pay plaintiff’s fees and attorneys’ costs. Moreover, if a plaintiff’s CVRA claim was upheld, the City might jeopardize its ability to participate in a meaningful manner in subsequent court-ordered districting.
Environmental Determination
Staff has determined that the proposed action is not a project as defined by the California Environmental Quality Act. (“CEQA”) (CCR, Title 14, Chapter 3 (“CEQA Guidelines”), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The resolution option stated above has no potential to cause any effect on the environment because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines Section 15378.
Explain Recommendation and How it Supports the Vision
Gonzales will continue to be a safe, clean, family-friendly community, diverse in its heritage, and committed to working collaboratively to preserve and retain its small town charm.
Explain: The proposed district-based transition has the potential to facilitate the City’s commitment to diversity in all aspects of governance and operations.
Explain how the Recommendation Directly Implements the Mission The City Council and Staff of the City of Gonzales will realize our Vision by providing the leadership, commitment and resources necessary to provide excellent services that enhance the quality of life of our diverse community. X Yes ___ No
Explain: The new voting process should assist the City in achieving the City’s vision by ensuring diversity in City representation.
City services will be delivered in a cost-effective, respectful and friendly manner to ensure the safety and well being of the residents and the promotion of business, recreational, housing and employment opportunities in an environmentally sustainable manner. ___ Yes No Explain: N/A.
Strong fiscal policies allow us to provide appropriate infrastructure for:
• Public Safety Yes No X NA
• Housing Yes No X NA
• Recreation Yes No X NA
• Environment Yes No X NA
• Education Yes No X NA
Explain: N/A.
ALTERNATIVES
See discussion above.
BUDGET IMPACT
Depending on which option the Council chooses, the City may have a variety of potential costs. A decision to transition to a district-based election system will entail the retention of a demographer and costs associated with the transition process, which involves at least five public hearings. A decision to reject the demand to transition to district-based based elections may result in substantial litigation costs and the payment of plaintiff’s fees and costs should the plaintiff prevail in its action.
CONCLUSION
It is recommended that the City Council receive the report and consider adoption of Resolution No. 2022- 54, A Resolution of the City Council of the City of Gonzales Initiating a Transition to a District-Based Election System.
Attachments:
1. LULAC Letter (Attachment A)
2. Resol No. 2022-54
3. Tolling Agreeement with LULAC