CITY OF LAGUNA NIGUEL
CITY COUNCIL AGENDA ITEM
To: Honorable Mayor and Council Members
FROM: Scott C. Smith, City Attorney
DATE: July 26, 2023
SUBJECT: Adoption of Resolution No. 2023-1444, Declaring the City's Intention to Transition from At-Large to District-Based Elections
RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. 2023-1444, declaring the City's intent to transition from the current at-large voting system to a district-based electoral system in furtherance of the California Voting Rights Act.
BACKGROUND
The City of Laguna Niguel currently elects its five-member City Council through an "at- large" election system in which each Council Member may reside anywhere in the City's jurisdictional boundaries. In the current system, each member is elected by voters Citywide to provide Citywide representation. This is in contrast to a "by-district" election system where a city is divided into geographical districts, each Council candidate must reside in the district they will represent, and only voters within a given district vote for that district's council member.
On June 16, 2023, the City received a letter from the Law Offices of Michelle R. Jackson on behalf of unnamed community group and minority voters residing within the City, claiming that the City's at-large voting system dilutes the ability of minority voters to elect candidates of their choice or to otherwise influence the outcome of City elections (Attachment A). As a result, Ms. Jackson claims, the City's at-large elections violate the California Voting Rights Act ("CVRA"). This letter is sent as a prerequisite to any lawsuit claiming CVRA violations.
This report provides background on the CVRA and the City's options to respond to the demand letter.
ANALYSIS
The CVRA, codified in California Elections Code sections 14025 et seq., became law in 2003 and is intended to prevent the disenfranchisement of protected classes, including members of a race, color, or language minority group. Any voter who is a member of a "protected class" and resides in the jurisdiction may bring an action against the jurisdiction for violation of the CVRA. However, courts have broadly interpreted the CVRA's text to grant standing to all individuals seeking to file voter dilution lawsuits, thereby indicating a very lenient standard for establishing standing as a potential plaintiff under the CVRA.
In order to succeed in a CVRA lawsuit, a plaintiff is not required to show that the public agency has a discriminatory intent, or that minority voters live in a geographically compact area of the jurisdiction and suffer vote dilution. Rather, the standard, is whether, as a result of an at-large voting system "racially polarized voting" has occurred.
Presumptions in the CVRA weigh heavily on the side of plaintiffs. To prove a violation, plaintiffs must demonstrate "racially polarized voting" and "vote dilution." Racially polarized voting occurs when there is a difference between voting choices in a protected class and voting choices in the rest of the electorate. "Vote dilution" occurs when the votes of the protected class members are outweighed or "diluted" by the votes of the (presumably White) majority of the electorate. This difference can be demonstrated merely by a review of voting patterns showing that the protected class votes differently from the majority and is unable to elect the candidates of their choice or to influence elections for any candidate or ballot measure.
Unlike the federal Voting Rights Act, the CVRA does not require the plaintiff to establish discriminatory intent, historical discrimination, or that minority voters live in a geographically compact area of the City. This significantly eases the burden of proving a violation of California law, as opposed to federal law. Further, the CVRA allows successful plaintiffs to recover reasonable attorney's fees and litigation costs (which include expert witness fees).
In light of the CVRA's low burden of proof, many public agencies throughout California have faced challenges to their at-large election systems, each beginning with demand letters similar to the one the City received. We know of no public agency that has successfully defended a CVRA lawsuit. The lawsuits are very labor-intensive, so judgements and settlements in excess of $100,000 are common. The largest settlement so far has been the City of Palmdale, which settled its ongoing litigation for $4.7 million.
The City of Modesto settled for $3 million, and the cities of Highland, Anaheim, and Whittier all settled for approximately $1 million. The City of Santa Monica is currently defending a similar lawsuit now before the California Supreme Court, with stakes for attorney's fees on each side reportedly now exceeding $30 million. Because of the low burden of proof for plaintiffs, the low probability of litigation success, and the potential for being required to pay plaintiffs' attorneys fees, a large majority of agencies have voluntarily changed from at-large elections to district-based elections rather than engage in potentially expensive and futile litigation.
The California Legislature included a "safe harbor" from expensive lawsuits and settlements in Elections Code Section 10010 which provides a procedure to transition to district-based elections and a cap of fees where that procedure is invoked. Where these procedures are followed, prospective plaintiffs are barred from filing a CVRA lawsuit and their attorney's fees and costs are capped at $34,791.
ACTION OPTIONS:
A. Procedure to Transition to By-District Elections
Deciding to consider by-district elections through the "safe harbor" provision triggers a very short and aggressive timeline. The timeline to transition is as follows:
(1) Receive a Demand Letter and Response Period.
Once the prospective plaintiffs have sent a demand letter, as Ms. Jackson did, the prospective plaintiffs cannot sue the City for at least 45 days from the City's receipt of the written notice. We note that the 45th day from June 16, 2023 (the date Ms. Jackson's letter was received) is Monday, July 31, 2023. If the City adopts the Resolution of Intention at this meeting, according to terms reached with these claimants, prospective plaintiffs cannot sue for at least another 180 days, giving the City time to transition to by- district elections.
(2) Resolution of Intention.
Once a city council adopts a resolution outlining its intention to transition from an at-large to a district-based election, discusses the steps it will consider such transition, and provides an estimated time frame, the prospective plaintiff is barred from suing for at least 180 days from the date of the resolution's adoption. This will provide additional time to conduct public outreach, encourage public participation, and receive public input. If approved, the deadline in this matter would be extended to Monday, January 22, 2024.
The attached hearing schedule (Attachment B) shows how this could occur. (3) Public Hearings Prior to Drawing of District Map.
Before adopting district-based elections, the City must first prepare a draft map or maps.
However, before drawing a map, the City must hold at least two public hearings over a period of no more than 30 days. The public must be invited to provide input regarding the districts' boundaries and composition.
(4) District Map Drawing.
An expert is then required to prepare a proposed map or maps. Each voting district must be nearly equal in total population, using the data from the most recent census. The districts must be prepared in compliance with specific State and federal requirements, including consideration of contiguity, compactness, communities of interest and natural geographic boundaries.
The drawing of districts must be done carefully to ensure that minority votes are not diluted. Dilution may occur through "cracking," which occurs when the minority community is fragmented across several districts to prevent the minority community from gaining a majority. Dilution may also occur through "packing," which occurs when a minority community is concentrated into one or two districts where their votes would cause preferred candidates to win by an overwhelming majority. (5) Timing and Sequence of Elections.
The Council would also need to establish the timing and sequence of district elections.
The change to district boundaries will not affect the current at-large terms of any incumbents. Following the first election with the new district map, the Council would be comprised of approximately half of its members elected by-district and approximately half of its members elected at-large until a succeeding election cycle allows it to transition to fully by-district.
(6) Public Hearings for Map Consideration.
After the draft maps have been prepared, the City must publish and make them available to the public. The City must also show the staggered terms of office and the potential sequence of the elections. The Council must then hold at least two additional public hearings during which the public will be invited to provide input regarding the draft maps and sequence of elections. The first draft map must be published at least seven days before it is considered at a public hearing. If the map is revised at or during a hearing, it must be published again and made available to the public for at least seven days before being adopted.
(7) Map Adoption.
The Council, after selecting a map and choosing the timing and sequence of the election, would then adopt an ordinance providing for district elections, approving the map, and implementing district elections.
(8) Attorney's Fees.
Should the Council ultimately adopt an enactment establishing district-based elections by January 22, 2024, the claimants will be barred from filing a CVRA lawsuit against the City.
The claimants may demand reimbursement for the cost of the work product generated to support the original notice. Their demand must be made in writing and must be substantiated with financial documentation. The City must reimburse claimant within 45 days of the written demand. The amount claimed may not exceed $34,791.1 ' Subject to an annual index.
B. Proposed Resolution of Intention
If the Council opts to act within the "safe harbor" provisions described above, it should adopt the attached Resolution of Intention (Attachment C) at this meeting. This commences the transition process, stays any potential CVRA lawsuit, and give the Council time to complete the process in accordance with the Transition Schedule attached to this Staff Report.
ALTERNATIVES CONSIDERED
Alternatively, the Council could choose to reject this CVRA demand and defend a CVRA lawsuit if one is filed. The City would bear its own defense costs and face exposure to the claimants' fees, which would likely be significant.
FISCAL REVIEW
If the Council adopts the attached Resolution of Intention, an expert demographer will be needed to prepare the maps. That cost will be approximately $30,000, plus the cost of a public mapping tool. In addition, if the City commits to adopting this Resolution voluntarily and within the law's "safe harbor" provision, the City will be responsible for the prospective plaintiffs' attorney's fees and costs not to exceed $34,791.
If the City decides not to move forward with the transition to by-district elections and a CVRA lawsuit is filed against the City, the financial impact could be exponentially greater.
These amounts are in addition to the City Attorney's billings for representing the City in defense of the claim and possible lawsuit.
LEGAL REVIEW
The City Attorney's Office has reviewed and approved this report and Resolution No. 2023-1444 as to form.
CONCLUSION
Staff recommends that the City Council adopt Resolution No. 2023-1444, declaring the City's intention to transition to from an at-large to district-based electoral system.
Jamara 8 Aetorneau
Tamara S. Letourneau Scott C. Smith
City Manager City Attorney
orator 1 Marte
Ostin J. Martir
Agsistant City Manager
Attachments:
A. Michelle R. Jackson Demand Letter Received June 16, 2023 B. Transition Schedule
C. Resolution No. 2023-1444 - Resolution of Intention
ATTACHMENT A
Michelle R. Jackson Demand Letter Received June 16, 2023 Law Offices of Michelle R. Jackson
34189 PCH, Suite 204
Dana Point, CA 92629
(949) 606-2674
VIA HAND DELIVERY
June 16, 2023
Attn: City Council
City of Laguna Niguel
aguna Niguel City Hal
0111 Crown Valley Parkwa
Laguna Niguel, CA 92677
Re: Violations of the California Voting Rights
Dear City Council,
On May 25, 2023, this office sent a letter to the City of Laguna Niguel on behalf of one of its clients (see attached). It has been brought to our attention that the letter included a typographical error wherein it inaccurately stated that the letter of demand was sent on behalf of a community "non-profit" client when it was intended to read that it was sent on behalf of a community "group". Given the typographical error made by this office as well as the importance that this office and our clients place on ensuring that residents in the City of Laguna Niguel ("Laguna Niguel") are not disenfranchised, we are resending a letter of demand for clarification. In addition to the community group on whose behalf the May 25, 2023 letter was sent, this office also represents several minority residents whom reside and vote in the City of Laguna Niguel ("Laguna Niguel").
Laguna Niguel relies upon an at-large election system for electing candidates to its City Council. Moreover, a review of Laguna Niguel's voting results appears to illustrate that they are racially polarized, resulting in minority vote dilution. Therefore, Laguna Niguel's at-large elections violate the California Voting Rights Act of 2001 ("CVRA").
The CVRA disfavors the use of "at-large" voting since this method effectively prevents a protected class from having a sufficient opportunity to elect a candidate of choice. See generally Sanchez v Modesto (2006) 145 Cal App4th 660, 667. Further, these at-large election systems often result in the dilution or impairment of minority voters and their ability to elect candidates more representative of their neighborhoods by allowing a bare majority of voters to control every seat, not just a proportional majority of seats. See Thornburg v Gingles (1986) 478 U.S.
To find a violation, the CVRA only requires that there be a showing of racially polarized voting.
See Cal. Elec. Code § 14028 ("A violation of Section 14027 is established if it is shown that racially polarized voting occurs ..."). It is my clients' position that Laguna Niguel's system of 1 at-large elections dilutes the ability of Latinos, a protected class, to elect candidates of their choice or otherwise influence the outcome of Laguna Niguel's elections for its City Council Members.
During the last twenty (20) years, not a single Latino has been elected to the Laguna Niguel City Council. There also has not been a single Latino candidate in the past 20 years, despite Latinos currently comprising 17% of the population of Laguna Niguel, which is the second largest race and ethnicity population in the city. This lack of Latino participation in seeking election to the city council is prima facia evidence of voter dilution on the part of the City. See generally Westwego Citizens for Better Government v City of Westwego 872 F2d 1201 (5' Cir. 1989). There is a clear disconnect between the significant Latino population in Laguna Niguel and the complete absence of Latinos on the City Council further evidencing the inherent discrimination of the elections process in Laguna Niguel.
In accordance with the above, it is again respectfully requested that Laguna Niguel change the manner in which it elects councilmembers to its city council and adopt a district system. Please be advised that if we do not have some movement with regard to this issue by July 31, 2023, we will be forced to seek judicial relief on behalf of residents within Laguna Niguel.
Sincerely,
Michelle R. Jackson
Enclosure
Cc: Marissa Asistin, City Clerk
2 ATTACHMENT B
Transition Schedule
TRANSITION SCHEDULE
Date Type of Meeting Purpose
July 26, 2023 City Council Meeting/ City Council Resolution of Intention Discussion
July 31, 2023 Deadline for Resolution
Sep. 5, 2023 Public Hearing Public Hearing #1 (Before maps are drawn) Sep. 19, 2023 Public Hearing Public Hearing #2 (Before maps are drawn) Oct. 24, 2023 Deadline for first map hearing submissions Oct. 24, 2023 Deadline to Act Without 90-
Day Extension
Oct. 31, 2023 Final day to publish first draft maps.
Nov. 7, 2023 Public Hearing Public Hearing #3 (After maps are drawn) Dec. 5, 2023 Public Hearing Public Hearing #4 (After maps are drawn) and first reading of ordinance Jan 16, 2024 City Council Meeting Second reading of ordinance Jan. 22, 2024 Deadline to Act With 90-day
Extension
ATTACHMENT C
Resolution No. 2023-1444 - Resolution of Intention
RESOLUTION NO. 2023-1444
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF LAGUNA NIGUEL, CALIFORNIA,
DECLARING ITS INTENTION TO TRANSITION FROM AT-LARGE
TO DISTRICT-BASED ELECTIONS
WHEREAS, the City Council of the City of Laguna Niguel is an elected legislative and deliberative public body serving the citizens of the City of Laguna Niguel, a California general law city; and
WHEREAS, members of the City Council of Laguna Niguel are currently elected in November of even-numbered years and pursuant to an "at-large" election system in which registered voters of the entire jurisdiction elect candidates to the City Council; and WHEREAS, California Elections Code Section 10010 permits a city council to adopt a resolution to change its method of elections from an "at-large" system to a "district-based" system in which each member of the city council is elected only by the voters in the voting district in which the candidate resides; and WHEREAS, California Elections Code Section 10010 provides the process for initiating a transition to district-based elections; and WHEREAS, the California Voting Rights Act ("CVRA") favors district-based elections over at-large; and
WHEREAS, the CVRA (1) provides that violations of the CVRA may be established by a showing that racially polarized voting occurs in at-large elections and (2) presumes that such showing establishes an impairment of a protected class's ability to elect candidates of its choice or to influence the outcome of elections; and WHEREAS, under the CVRA, "racially polarized voting" means voting in which the voting patterns of voters in a protected class differ from the patterns of other voters; and WHEREAS, the City received a letter on or about June 16, 2023, from Attorney Michelle Jackson on behalf of unnamed community group and minority voters residing within the City ("Prospective Plaintiffs"), asserting that Laguna Niguel's present at-large election system violates the CVRA; and
WHEREAS, the City Council will always act with the best interest of the City as a whole, and is committed to diversity and inclusion with respect to its elections and desires to take all steps necessary to enhance the representation of voters of protected classes in furtherance of the CVRA; and
WHEREAS, to avoid the significant costs of any potential litigation regarding the Prospective Plaintiffs, the City desires to adopt a resolution of intention to transition to district-based elections on a timely basis; and
55842.00002\41484069.2
WHEREAS, Prospective Plaintiffs' demand for attorney's fees for bringing this demand are restricted under Elections Code Subsection 10010(f) if the City converts to at-large elections; and
WHEREAS, the adoption of a district-based system will not affect the terms of any sitting Council Member; and
WHEREAS, the City Council has determined that public policy favors instituting district-based elections; and
WHEREAS, the public interest would be served and the purposes of the CVRA vould be furthered by City Council consideration of a proposal to transition to a district ased election system in light of the uncertainty of litigation and the potential extraordinar cost of defending a CVRA lawsuit, even if the City ultimately were to prevail; and WHEREAS, the City Council desires to declare its intention to act pursuant to Government Code section 34886 and Elections Code section 10010 to transition from at- large to district-based elections for the next general municipal election, establish specific steps it will undertake to facilitate this transition, and set an estimated time frame for doing so.
NOW, THEREFORE, BE IT RESOLVED that the City Council for the City of Laguna Niguel, hereby finds, determines, and resolves as follows:
1. Incorporation of Recitals. The City Council finds that all of the foregoing recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.
2. CEQA. Based upon the whole of the administrative record before it, the City Council hereby finds that a transition from at-large to district-based elections is exempt from environmental review under the California Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 et seq.) pursuant to State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) sections 15061(b)(3), 15320, and 15378(b)(3). Adoption of this Resolution is an organizational and administrative activity of the City, does not have the potential to result in either a direct or reasonably foreseeable indirect physical change in the environment, and is therefore not a project for purposes of CEQA. (State CEQA Guidelines, §§ 15061(b)(3); 15378(b)(5).) In the event adoption of this Resolution does constitute a project, it is categorically exempt under the Class 20 (Changes in the Organization of Local Governments) categorical exemption. (State CEQA Guidelines, § 15320.) Further, none of the exceptions to the exemptions found in State CEQA Guidelines section 15300.2 apply. Staff is hereby directed to prepare, execute and file with the Orange County Clerk a CEQA Notice of Exemption within five (5) working days of the adoption of this Resolution.
3. Intention to Transition to District-Based Election System. Prior to the November 2024 General Municipal Election, the City Council intends to adopt an enactment, 55842.00002\41484069.2
pursuant to Government Code section 34886 to transition the election of its City Councilmembers from an at-large electoral system to a district-based system.
With any transition to a district-based electoral system, the Laguna Niguel City Council agrees to continue to operate and make decisions based upon what is best for the community as a whole.
4. Instructions Related to Transition. Following the effective date of this Resolution, taking into consideration the time required for public outreach and input, and the timeframes established by the California Elections Code, the following actions shall be taken by the City and the City Council in accordance with Elections Code section 10010(a):
Conduct public outreach, including to non-English-speaking communities, to explain the districting process and to encourage public participation; Before drawing a draft map or maps of the proposed district boundaries, hold at least two public hearings at which the public is invited to provide input regarding the composition of the districts and to consider district boundaries as provided in Elections Code Section 10010;
After drawing a draft map or maps, publish the draft map(s) and the potential sequence of the district elections, and hold at least two public hearings at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections; and
(iv) Hold a public hearing at which the City Council will consider and adopt an enactment establishing district elections, including the adoption of a district boundary map and the sequence of the district elections.
5. Severability. If any provision or clause of this Resolution is held invalid, unconstitutional, or otherwise repealed by act of law, such invalidity shall not affect any other provisions or clauses of the same which can be given effect without the invalid provision, clause, or application. To this end, the provisions and clauses of this Resolution hereto are declared to be severable.
6. Certification. The City Clerk shall certify the adoption of this Resolution.
7. Effective Date. This Resolution shall become effective immediately upon adoption. 55842.00002\41484069.2
PASSED, APPROVED AND ADOPTED by the City Council of the City of Laguna Niguel, State of California, this 26th day of July, 2023.
Kelly Jennings, Mayor
ATTEST:
Marissa J. Asistin, City Clerk
55842.00002\41484069.2