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Berkeley (1988) 47 Cal.3d 512, 533, 253 Cal.Rptr. 839, 765 P.2d 46 [concluding that undefined “terms of art” in a statute refer to the definitions provided by federal law].) Although the legislative history materials can be read in different ways, one committee analysis recognized that the CVRA targets racially polarized voting in at-large elections only “if it Impairs the Right of Protected Groups” to elect their
preferred candidates or influence the outcome of an election. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976, supra, as amended Apr. 9, 2002, p. 2.) After all, “the very concept of vote dilution implies — and, indeed, necessitates — the existence of an ‘undiluted’ practice against which the fact of dilution may be measured.” ( **65 Reno v. Bossier Parish School Bd. (1997) 520 U.S. 471, 480, 117 S.Ct. 1491, 137 L.Ed.2d 730.)
[12] Plaintiffs' construction would allow a party to prevail based solely on proof of racially polarized voting that could not be remedied or ameliorated by any other electoral
system. Moreover, such a construction would render the
word “dilution” in Elections Code section 14027 surplusage.
Accordingly, we agree with the Court of Appeal that dilution is a separate element under the CVRA. To establish the
dilution element, a plaintiff in a CVRA action must identify “a reasonable alternative voting practice” to the existing atlarge electoral system that will “serve as the benchmark ‘undiluted’ voting practice.” (Reno v. Bossier Parish School Bd., supra, 520 U.S. at p. 480, 117 S.Ct. 1491.)
2. “The Ability ... to Elect Candidates of Its Choice”
The CVRA does not explicitly define what it means to
“impair[ ] the ability of a protected class to elect candidates of its choice.” (Elec. Code, § 14027.) On this question, we find the VRA illuminating, but not dispositive.
[13] An at-large electoral system impairs a protected class's ability “to elect representatives of their choice” under the federal act ( 52 U.S.C. § 10301(b)) only when the class can “demonstrate that it is sufficiently large and
geographically compact to constitute a majority in a singlemember district.” ( Gingles, supra, 478 U.S. at p. 50, 106 S.Ct. 2752.) The rationale for the VRA approach is that “if the minority group is spread evenly throughout a
multimember district, or if, although geographically
compact, the minority group is so small in relation to the surrounding white population that it could not constitute ***332 a majority in a single-member district, these minority voters *316 cannot maintain that they would have been able to elect representatives of their choice in the absence of the multimember electoral structure.” ( Gingles, at p. 50, fn. 17, 106 S.Ct. 2752.)
For some period after Gingles, it was uncertain whether the first Gingles requirement (i.e., whether the minority group is sufficiently large and compact) could be satisfied by proof that the minority population “is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred candidate.” ( Bartlett v. Strickland (2009) 556 U.S. 1, 13, 129 S.Ct. 1231, 173 L.Ed.2d 173
(plur. opn. of Kennedy, J.) ( Strickland).) Strickland
settled the question. It held that the VRA does not impose “a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters.” ( Strickland, at p. 15, 129 S.Ct. 1231 (plur. opn. of
Kennedy, J.).) Dispensing with the requirement that the minority group, by itself, be sufficiently large and compact to constitute a majority in the hypothetical district, the court reasoned, “would call in question the Gingles
framework.” ( Strickland, at p. 16, 129 S.Ct. 1231 (plur. opn. of Kennedy, J.).)
The Court of Appeal effectively embraced the Strickland approach in construing the CVRA. It required a showing that Latino voters could constitute a majority, all by themselves, in a hypothetical single-member district. Indeed, it noted that “30 percent is not enough to win a majority” and rejected plaintiffs' contention that an ability to elect a preferred candidate could be shown in this case if non-Latino voters were to “ ‘cross over’ and vote for Latino candidates,
buoying Latino power and clearing the 50 percent threshold to electoral success.”
The Court of Appeal erred in importing the VRA's majorityminority requirement into the CVRA. In enacting the CVRA, the Legislature wanted to make it “easier” for protected classes to demonstrate an ability to elect their preferred candidates under an alternative voting system. (Assem. Com. on Elections, Reapportionment and Const. Amends.,
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racially polarized voting, or a violation **66 of Section 14027 and this section ....” (Elec. Code, § 14028, subd. (c); see Sen. Com. on Elections and Reapportionment, Analysis of Sen. Bill No. 976 (2001–2002 Reg. Sess.) as amended
May 1, 2001, p. 3 [“Unlike the preconditions established by the Supreme Court in Thornburg v. Gingles, this bill does not require that the minority community be geographically compact or concentrated”]; Assem. Com. on Elections,
Reapportionment and Const. *317 Amends., Analysis of Sen.
Bill No. 976, supra, as amended Mar. 18, 2002, p. 4 [“This bill requires that only two of those [ Gingles] conditions be met”].)
The Legislature's rationale for rejecting the majorityminority requirement seems clear enough: It would make little sense to require CVRA plaintiffs to show that the protected class could constitute a majority of a hypothetical district, given that the CVRA is not limited to ability-to-elect claims nor are its remedies limited to district elections. (See, e.g., Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 670, 51 Cal.Rptr.3d 821 [“In a cumulative voting
system, a politically cohesive but geographically dispersed minority group can ***333 elect a single candidate ...
although it would be unable to elect any candidates in a conventional winner-take-all at-large system and could not form a majority in any feasible district in a district system”].) Though the parties have focused in this court on district elections, the trial court found that, in addition to district elections, several alternative at-large election methods — cumulative voting, 6limited voting, 7 and ranked choice voting 8 — would each enhance Latino voting power and
their ability to elect candidates of their choice. None of these methods would require a winning candidate to muster a
majority in a hypothetical district. We can think of no reason why a CVRA claim based on any of these alternate at-large election methods should depend on such a showing. (Cf.
Elec. Code, § 14028, subd. (c) [“that members of a protected class are not geographically compact or concentrated ... may be a factor in determining an appropriate remedy”].)
Furthermore, the Legislature clearly intended to make the CVRA more expansive than the VRA — by, for example,
explicitly recognizing claims based on dilution of the “ability to influence the outcome of an election.” (Elec. Code, § 14027.)
Even in the context of district elections, the Court of Appeal's focus on a majority-minority district was
misguided. The Court of Appeal feared that allowing a
plaintiff to rely on crossover votes “arbitrarily embraces racially polarized voting when it helps and abandons it when it hurts,” which it viewed as creating “a manipulable
standard boiling down to plaintiff always wins.” But far from embracing racially polarized voting “when it *318 helps” and abandoning it “when it hurts,” plaintiffs are merely pointing out the differing effects of racially polarized voting in two different settings. To challenge an at-large electoral system, a plaintiff must first demonstrate the existence of racially polarized voting — i.e., cognizable differences “in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate.” (Elec. Code, § 14026, subd. (e).) The plaintiff must next show that the protected class would have the potential to elect its preferred candidate or candidates under a different electoral system (say, district elections). In calculating the protected class's voting strength under the alternative system, the plaintiff does not “abandon[ ]” racially polarized voting. Rather, the plaintiff must **67 prove that, assuming the same degree of racial polarization, the greater concentration of protected class voters in the hypothetical district would nonetheless be sufficient to enable them to elect their preferred candidate when
combined with the available crossover votes. Alternatively, the plaintiff may be able to demonstrate sufficient voting strength where racially polarized voting by other ***334 voters in the hypothetical district is lower than in the community as a whole. In neither instance is the plaintiff seeking to “abandon” racially polarized voting “when it hurts.”9
[14] The City's position in this court is slightly more nuanced, but no more persuasive. The City allows that there may be “room to expand vote-dilution claims beyond section 2's narrow ambit,” but only “where the relevant minority group would account for a near-majority of voters in a hypothetical district with a history of reliable crossover support from PGCC 10-2-24
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depend on the existence of a near majority in some
hypothetical district that would never be drawn or used. *319 These omissions counsel against adoption of the City's position. Rather than quibble over whether a protected class falls on one side or the other of an undefined near-majority line, we think it more sensible to inquire directly whether the prospect of crossover support from other voters under a lawful alternative electoral scheme would offer the protected class, whatever its size, the potential to elect its preferred candidate. When the hypothetical alternative is district elections, a high degree of racially polarized voting may, in many cases, effectively require the protected class to
constitute a substantial or very substantial minority of voters.
The higher the degree of racial polarization, the greater the percentage required by the protected class to demonstrate it would be able, in combination with crossover voters, to elect its preferred candidate. But there is no reason to layer this inquiry with an additional predicate showing of some
undefined near majority. All that is required is that the protected class be “sufficiently large ... to elect candidates of its choice,” even if it falls short of “an absolute majority of the relevant population.” ( De Grandy, supra, 512 U.S. at pp. 1008, 1009, 114 S.Ct. 2647.)10
We are also sensitive to the fact that Gingles's majorityminority requirement is a poor fit for the CVRA, which applies ***335 exclusively to nonpartisan elections. (See Cal. Const., art. II, § 6.) In the City, for example, multiple candidates may vie for office, and a plurality can be
sufficient to win. Requiring a protected class to demonstrate it could constitute a majority or near-majority of a
hypothetical district would impose a threshold far higher than what the protected class's preferred candidate would actually need to be **68 elected. (See Romero v. City of Pomona (9th Cir. 1989) 883 F.2d 1418, 1424, fn. 7 [“Less than a majority, of course, might suffice in a district where candidates are elected by plurality”], overruled on other grounds in Townsend v. Holman Consulting Corp. (9th
Cir. 1990) 929 F.2d 1358, 1363.) We therefore decline to require a protected class demonstrate it would constitute a majority or near majority of a hypothetical district in all circumstances.
3. “Dilution” of “the Ability ... to Elect Candidates of Its Choice”
[15] Accordingly, to establish dilution of a protected class's ability to elect its preferred candidate under the CVRA, a plaintiff must demonstrate “the potential to elect
representatives” under some lawful alternative electoral *320 method. ( Gingles, supra, 478 U.S. at p. 50, fn. 17, 106 S.Ct. 2752.) One way to demonstrate the class's potential to elect its preferred candidates would be to show, as the VRA requires, that the class would be “sufficiently large and geographically compact to constitute a majority in a singlemember district.” ( Gingles, at p. 50, 106 S.Ct. 2752.) But that is not the only way. (See Elec. Code, § 14028, subd. (c).) Because the CVRA applies exclusively to nonpartisan
elections, where there may be more than two candidates, the winner may prevail with far less than a majority of the vote.
Moreover, the protected class may be able to demonstrate its ability to attract crossover votes for its preferred candidate.
Finally, a plaintiff may identify nondistrict remedies that would enable the class, on its own or with the assistance of crossover votes, to elect its preferred candidate. The minority population percentage necessary to win an election under some alternative at-large electoral systems — cumulative or ranked-choice voting, for example — may be less than 25 percent. (See Dillard v. Chilton County Bd. of Education (M.D.Ala. 1988) 699 F.Supp. 870, 874 ( Dillard) [“in a
jurisdiction with seven seats, the threshold of exclusion[11] would be 12.5% plus” in a cumulative voting system];
Mulroy, The Way Out: A Legal Standard for Imposing
Alternative Electoral Systems as Voting Rights Remedies (1998) 33 Harv. C.R.-C.L. L.Rev. 333, 342 [threshold for ranked-choice voting “is identical to that of cumulative voting”].)
Determining whether the protected class has the potential to elect its preferred candidate under some alternative system requires a “ ‘functional’ analysis of the political process” in that locality and a “ ‘searching practical evaluation of the “past and present reality.” ’ ” ( Gingles, supra, 478 U.S. at pp. 62–63, 106 S.Ct. 2752.) Courts should consider the
totality of the facts and circumstances of the particular case PGCC 10-2-24
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experiences of other similar jurisdictions that use district elections or other alternatives to traditional at-large elections.
Courts should likewise keep in mind that the inquiry at the liability **69 stage “is simply ‘to prove that a solution is possible, and not necessarily to present the final solution to the problem.’ ” ( Pope v. County of Albany (2d Cir. 2012) 687 F.3d 565, 576; see Gingles, supra, 478 U.S. at p. 50, fn. 17, 106 S.Ct. 2752.)
At the remedial stage the focus will shift to which electoral system is “appropriate” and “tailored to remedy the
violation.” (Elec. Code, § 14029.) If the court selects a district remedy, then there must also be at least two public hearings before the maps are drafted and at least two more hearings once the maps have been drawn and published. (Id., § 10010, subds. (a)(1), (2), (c).) In other words, the remedy the court ends up selecting under section 14029 may, but need not, be the benchmark the plaintiff offered to show the element of dilution.
The Court of Appeal feared that failing to craft a majorityminority requirement “would give a winning cause of action to any group, no matter how small, that can draw a district map that would improve its voting power by any amount, no matter how miniscule.” To prove its point, the court offered a hypothetical in which a protected class's share of the
electorate could increase from 0.1 percent under an at-large system to 1.5 percent in a proposed district. Even though the group's voting power would increase 15-fold, it could have “no practical numerical influence in any voting system” because there would be “simply too few voters ... to be numerically effective in an environment of race-based
voting.” This would, the Court of Appeal warned, “merely ensure plaintiffs always win.”
We agree with the Court of Appeal that a plaintiff cannot prove dilution of its ability to elect its preferred candidate under the CVRA by showing that its voting share would
increase 15-fold, from 0.1 percent to 1.5 percent, in a hypothetical district. In that circumstance, as the Court of Appeal explained, “[t]here are simply too few voters ... to be numerically effective in an environment of race-based
voting.” But it does not follow that a majority (or nearmajority) requirement should be judicially engrafted onto the CVRA. After all, by eliminating Gingles's geographic
compactness requirement, the Legislature rejected any
requirement that the protected class constitute a majority of a hypothetical district. (See Elec. Code, § 14028, subd. (c).) What enables courts to sort successful claims from
unsuccessful claims is the dilution element itself, which requires the plaintiff to show that the protected class would, under some lawful alternative, have a “real *322 electoral opportunity” to elect its candidate of choice, either on its own or with the aid of crossover voters. ( ***337
LULAC, supra, 548 U.S. at p. 428, 126 S.Ct. 2594; see
Pope v. County of Albany, supra, 687 F.3d at p. 575, fn. 8.)12 [17] The dilution element also ensures the protected class is not made worse off. To replace at-large with district elections under a dilution theory, a successful plaintiff must show not merely that the protected class would have a real electoral opportunity in one or more hypothetical districts, but also that the incremental gain in the class's ability to elect its candidate of choice in such districts would not be offset by a loss of the class's potential to elect its candidates of choice elsewhere in the locality. (Cf. Georgia v. Ashcroft (2003) 539 U.S. 461, 479, 123 S.Ct. 2498, 156 L.Ed.2d 428 [“in examining whether the new plan is retrogressive, the inquiry must encompass the entire statewide plan as a whole”].) While “[t]he fact that the proposed remedy does not benefit PGCC 10-2-24
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overall ability to elect its preferred candidates. As both sides in this proceeding agree, unless the plaintiff can demonstrate a net gain in the protected class's potential to elect candidates under an alternative system, it has not shown the at-large method of election “impairs” the ability of the protected class to elect its preferred **70 candidates. (Elec. Code, § 14027; cf. Beer v. United States (1976) 425 U.S. 130,
141, 96 S.Ct. 1357, 47 L.Ed.2d 629 [“the purpose of § 5 [of the VRA] has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise”].)
We also reject the City's contention that a majority-minority requirement — or something close to it in the form of a nearmajority requirement — is necessary to avoid difficult constitutional questions under the equal protection clause. In the City's view, it would be perilous for courts to draw racebased districts in the absence of a compelling justification. (See Cooper v. Harris (2017) 581 U.S. 285, 291–293, 137 S.Ct. 1455, 197 L.Ed.2d 837.) Merely increasing the
percentage of minority voters in a hypothetical district where “the increase will have no real-world effect,” the City warns, is not a compelling justification. But the CVRA does not require a court to grant relief that has no real world effect. As stated above, the alternative voting system must offer the protected class at least a “potential” to elect its preferred candidates that did not exist under the at-large system. ( *323 Gingles, supra, 478 U.S. at p. 50, fn. 17, 106 S.Ct. 2752.) Moreover, nothing in the CVRA requires a
municipality or a court to select a district-based remedy or, even if it chooses to do so, to draw district lines, as the City contends, based “principally on race.” To the contrary:
California law directs that district boundaries comply with the state and federal Constitutions (as well as the VRA) (Elec. Code, § 21621, subd. (b)) and requires, to the extent practicable, that boundaries be “geographically contiguous” and maintain the integrity of “any local neighborhood or local community of interest.” (Id., subd. (c)(1), (2).) State law also encourages district lines to be drawn along ***338 “natural and artificial barriers” and with “geographical compactness.” (Id., subd. (c)(3), (4).) The City does not explain how or why districts drawn in accordance with the above criteria would run afoul of the Constitution. (See Miller v. Johnson (1995) 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 [“legislatures will ... almost always be aware of racial demographics”]; cf. ibid. [strict scrutiny applies only where “race was the predominant factor
motivating the legislature's decision” and “the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations”].) Indeed, assuming lines are drawn “based on proper factors,” whether to create a district where a protected class has the potential to elect its candidate of choice is “a matter of legislative choice or discretion.” ( Strickland, supra, 556 U.S. at p. 23, 129 S.Ct. 1231 (plur. opn. of Kennedy, J.); see Higginson v.
Becerra (9th Cir. 2019) 786 Fed.Appx. 705, 707–708.) That's precisely the choice the Legislature made in enacting the CVRA: “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 ....” (Elec. Code, § 14027.)
4. “Dilution” of “the Ability ... to Influence the Outcome of an Election”
Unlike its federal analogue, the CVRA prohibits the use of an at-large electoral system that dilutes not only the ability of a protected class “to elect candidates of its choice,” but also “its ability to influence the outcome of an election.” (Elec.
Code, § 14027.) The inclusion of the latter phrase further supports our conclusion that the CVRA cannot be read in the limited manner the City would like; indeed, the influence prong suggests a focus broader than the class's ability to elect its preferred candidates (with or without the help of
crossover voters). (Cf. Strickland, supra, 556 U.S. at p. 13, 129 S.Ct. 1231 (plur. opn. of Kennedy, J.) [“a minority group can influence the outcome of an election even if its preferred candidate cannot be elected”]; LULAC, supra,
548 U.S. at pp. 445–446, 126 S.Ct. 2594 (plur. opn. of
Kennedy, J.) [distinguishing between a group's “ability to influence the outcome [of an election] between some
candidates, none of whom is their candidate of choice,” and the ability to elect “their candidate of choice”]; **71 10 Ill.
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We need not decide the scope of the CVRA's ability-toinfluence prong in this case, however. Plaintiffs did not argue in the trial court or in this court an influence theory distinct from their claim that the City's at-large election system diluted their ability to elect their candidates of choice.
III. Conclusion
A group's ability “to compete successfully at electoral politics, in short, is often dependent on how the competition is structured.” (Engstrom, supra, 21 Stetson L.Rev. at p. 743.) The CVRA represents the Legislature's effort to make that competition more fair. It bars the use of an at-large method of election if that method ***339 dilutes a protected class's ability to elect candidates of its choice or its ability to influence the outcome of an election. Dilution occurs when an at-large system denies a protected class the potential to elect its preferred candidate or influence the election's outcome. The plaintiff in a CVRA action must identify a lawful alternative to the existing at-large electoral system that will serve as the benchmark undiluted voting system.
A protected class has the ability to elect its preferred candidate if it would have the potential to elect that
candidate, on its own or with the assistance of crossover support from other voters, under an alternative voting
system; there is no additional requirement that the protected class constitute a majority or near-majority of a hypothetical district. A court presented with a dilution claim should undertake a searching evaluation of the totality of
circumstances (see, e.g., Elec. Code, § 14028, subd. (e)), including the characteristics of the specific locality, its electoral history, and the design and impact of the at-large system as well as the potential impact of lawful alternative electoral systems. In predicting how many candidates are likely to run and what percentage may be necessary to win, courts may also consider the experiences of other similar jurisdictions that use district elections or some method other than traditional at-large elections.
We express no view on the ultimate question of whether the City's at-large voting system is consistent with the CVRA.
The parties vigorously contested in the Court of Appeal whether plaintiffs had established two elements of a *325 CVRA claim: whether voting in city council elections was racially polarized and whether the at-large method of
election diluted the voting power of Latino residents in those elections. Because the Court of Appeal concluded that
plaintiffs had failed to demonstrate dilution of the Latino vote, it did not consider whether voting in council elections was racially polarized. We have determined that the Court of Appeal relied on an incorrect legal standard to conclude that plaintiffs had failed to satisfy the dilution element of their CVRA claim. Under the circumstances, we find it
appropriate to remand the matter to the Court of Appeal to decide in the first instance whether, under the correct legal standard, plaintiffs have established that at-large elections dilute their ability to elect their preferred candidate; whether plaintiffs have demonstrated the existence of racially
polarized voting; and any of the other unresolved issues in the City's appeal. (See Central Coast Forest Assn. v. Fish & Game Com. (2017) 2 Cal.5th 594, 606, 214 Cal.Rptr.3d 265, 389 P.3d 840.)
Disposition
We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with our opinion.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
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JENKINS, J.
All Citations
15 Cal.5th 292, 534 P.3d 54, 312 Cal.Rptr.3d 319, 23 Cal.
Daily Op. Serv. 8126, 2023 Daily Journal D.A.R. 8739
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1 The City asserts that in the 2020 city council election, four and one-half years after plaintiffs filed this action, three of the five winning candidates were Latino. Plaintiffs dispute this characterization of the winning candidates' ethnicities.
Given the limited issue before us, we express no view on the dispute. 2 “In an at-large (or multi-member district) system, all voters elect all representatives, and each voter has as many ballots as there are positions available. This system contrasts with a single-member district plan, under which the entire political jurisdiction is divided into districts roughly equal in population, each of which selects one representative by vote within the district.” ( Badillo v. Stockton (9th Cir. 1992) 956 F.2d 884, 889.) 3 The Senate factors include “the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members 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; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.” ( Gingles, supra, 478 U.S. at pp. 44–45, 106 S.Ct. 2752.) 4 The CVRA 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.” (Elec. Code, § 14028, subd. (e).) 5 We do not consider here whether the City's elections are racially polarized — an issue the Court of Appeal has not yet addressed — but we do note that, under the CVRA, “[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.” (Elec. Code, § 14028, subd. (a).)
6 Under cumulative voting, “a voter receives as many votes as there are candidates to elect, but may cast multiple votes for a single candidate.” ( Portugal v. Franklin County (Wash. 2023) 530 P.3d 994, 1002 ( Portugal).) 7 Under limited voting, “a voter receives fewer votes than there are candidates to elect.” ( Portugal, supra, 530 P.3d at p. 1002.)
8 Under ranked choice voting, a voter ranks candidates in order of preference. In an election to fill more than one seat, such as for a city council, each ballot is counted at the start of tabulation as one vote for its first-choice ranked candidate. Any candidate with more votes than the election threshold (see fn. 11, post) is declared elected. If the first round of the vote counting does not fill all the seats, then the system consults the next-ranked choices from the ballots supporting the candidate with the least number of votes, the next-ranked choices from the surplus ballots (i.e., those in excess of what was needed for the elected candidate to win), or both. Jurisdictions use a variety of methods to determine when and how to transfer the nextranked choices from surplus ballots. This form of tabulation continues PGCC 10-2-24
Pico Neighborhood Assn. v. City of Santa Monica, 15 Cal.5th 292 (2023) 534 P.3d 54, 312 Cal.Rptr.3d 319, 23 Cal. Daily Op. Serv. 8126... © 2024 Thomson Reuters. No claim to original U.S. Government Works. 19 until all seats are filled. (See Tideman, The Single Transferable Vote (Winter 1995) 9 J. Econ. Persp. 27, 27–28, 32– 35; see generally Note, The Madisonian Case for Ranked Choice Voting: Federalist No. 10, Preferential Voting, and the American Democratic Tradition (2021) 23 N.Y.U. J. Legis. & Pub. Pol'y 953, 963.) 9 We recognize that where there is complete racial polarization, the protected class may itself need to make up a majority of the district in order to have an ability to elect its preferred candidate. But “ ‘[i]n practice, such extreme conditions are never present.’ ” ( Strickland, supra, 556 U.S. at p. 45, 129 S.Ct. 1231 (dis. opn. of Breyer, J.) [“No voting group is 100% cohesive”]; see id. at pp. 32–33, 129 S.Ct. 1231 (dis. opn. of Souter, J.) [“of course minority voters constituting less than 50% of the voting population can have an opportunity to elect the candidates of their choice, as amply shown by empirical studies confirming that such minority groups regularly elect their preferred candidates with the help of modest crossover by members of the majority”].) As the high court has acknowledged, “there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice.” ( Johnson v. De Grandy (1994) 512 U.S. 997, 1020, 114 S.Ct. 2647, 129 L.Ed.2d 775 ( De Grandy).) 10 An amicus curiae letter submitted in support of Pico Neighborhood Association's petition for review by the chairs of the Assembly's Latino, Black, and Asian and Pacific Islander caucuses recites that while some members were elected in majority-minority districts, many others were elected in districts in which their membership group made up only 20 to 40 percent of the eligible voters. The trial court here similarly found that candidates from minority groups who had been “unsuccessful in at-large elections have won district elections” in districts “where the minority group is one-third or less of a district's electorate.”
11 “The threshold of exclusion ‘is the percentage of the vote that will guarantee the winning of a seat even under the most unfavorable circumstances.’ ” ( Dillard, supra, 699 F.Supp. at p. 874.) It “is calculated according to the following formula: 1/(1 + number of seats available).” ( U.S. v. Vill. of Port Chester (S.D.N.Y. 2010) 704 F.Supp.2d 411, 450.)
12 Plaintiffs suggest it would be rare for a group constituting less than 25 percent of the relevant voting population to make the required showing. We have no occasion here to explore that suggestion, since the Latino population in the proposed district exceeds that threshold.
End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
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1 Elections Code § 10010
§ 10010. Political subdivision changing from at-large method of election to district-based election or establishing district-based elections; public hearings; application; notice of action (a) A political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, shall do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district-based elections:
(1) Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than 30 days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the political subdivision may conduct outreach to the public, including to non-English-speaking communities, to explain the districting process and to encourage public participation.
(2) After all draft maps are drawn, the political subdivision shall publish and make available for release at least one draft map and, if members of the governing body of the political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. The first version of a draft map shall be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and made available to the public for at least seven days before being adopted.
(b) In determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purposes of the California Voting Rights Act of 2001, and it shall take into account the preferences expressed by members of the districts. (c) This section applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election. (d) For purposes of this section, the following terms have the following meanings:
(1) “At-large method of election” has the same meaning as set forth in subdivision (a) of Section 14026. (2) “District-based election” has the same meaning as set forth in subdivision (b) of Section 14026. (3) “Political subdivision” has the same meaning as set forth in subdivision (c) of Section 14026. (e)(1) Before commencing an action to enforce Sections 14027 and 14028, a prospective plaintiff shall send by certified mail a written notice to the clerk of the political subdivision against which the action would be brought asserting that the political subdivision's method of conducting elections may violate the California Voting Rights Act of 2001.
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2 (2) A prospective plaintiff shall not commence an action to enforce Sections 14027 and 14028 within 45 days of the political subdivision's receipt of the written notice described in paragraph (1). (3)(A) Before receiving a written notice described in paragraph (1), or within 45 days of receipt of a notice, a political subdivision may pass a resolution outlining its intention to transition from at-large to district-based elections, specific steps it will undertake to facilitate this transition, and an estimated timeframe for doing so. (B) If a political subdivision passes a resolution pursuant to subparagraph (A), a prospective plaintiff shall not commence an action to enforce Sections 14027 and 14028 within 90 days of the resolution's passage. (C)(i) A political subdivision and the prospective plaintiff who first sends a notice pursuant to paragraph (1) may enter into a written agreement to extend the time period described in subparagraph (B) for up to an additional 90 days in order to provide additional time to conduct public outreach, encourage public participation, and receive public input. The written agreement shall include a requirement that the district boundaries be established no later than six months before the political subdivision's next regular election to select governing board members.
However, in a political subdivision that holds a primary election as part of its process for selecting governing board members, the written agreement shall include a requirement that district boundaries be established no later than six months before the political subdivision's next regular primary election. (ii) No later than 10 days after a political subdivision enters into a written agreement pursuant to clause (i), the political subdivision shall prepare and make available on its internet website a tentative schedule of the public outreach events and the public hearings held pursuant to this section. If a political subdivision does not maintain an internet website, the political subdivision shall make the tentative schedule available to the public upon request.
(f)(1) If a political subdivision adopts an ordinance establishing district-based elections pursuant to subdivision (a), a prospective plaintiff who sent a written notice pursuant to paragraph (1) of subdivision (e) before the political subdivision passed its resolution of intention may, within 30 days of the ordinance's adoption, demand reimbursement for the cost of the work product generated to support the notice. A prospective plaintiff shall make the demand in writing and shall substantiate the demand with financial documentation, such as a detailed invoice for demography services. A political subdivision may request additional documentation if the provided documentation is insufficient to corroborate the claimed costs. A political subdivision shall reimburse a prospective plaintiff for reasonable costs claimed, or in an amount to which the parties mutually agree, within 45 days of receiving the written demand, except as provided in paragraph (2). In all cases, the amount of the reimbursement shall not exceed the cap described in paragraph (3). (2) If more than one prospective plaintiff is entitled to reimbursement, the political subdivision shall reimburse the prospective plaintiffs in the order in which they sent a written notice pursuant to paragraph (1) of subdivision (e), and the 45-day time period described in paragraph (1) shall apply only to reimbursement of the first prospective plaintiff who sent a written notice. The cumulative amount of reimbursements to all prospective plaintiffs shall not exceed the cap described in paragraph (3).
(3) The amount of reimbursement required by this section is capped at thirty thousand dollars ($30,000), as adjusted annually to the Consumer Price Index for All Urban Consumers, United States city average, as published by the United States Department of Labor.
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Professional Services Agreement 07.19.2022
FIRST AMENDMENT TO CITY OF PACIFIC GROVE
PROFESSIONAL SERVICES AGREEMENT WITH
NATIONAL DEMOGRAPHIC CORPORATION
FOR DEMOGRAPHER SERVICES
This First Amendment to City of Pacific Grove Professional Services Agreement (“Agreement”), is made and effective as of October 3, 2024, between the City of Pacific Grove (“City”), a municipal corporation and National Demographic Corporation, a California corporation (“CONSULTANT”).
The City and Consultant hereby agree to the following terms:
1. On May 20, 2024, the City and Consultant entered into a City of Pacific Grove Agreement for Professional Services generally described as: professional demographer services and the production of a report that describes the City’s demographic characteristics.
2. The Agreement provided Consultant agrees to the Section 2 Scope of Work that was set Forth in Exhibit A to the agreement.
3. This First Amendment to the Agreement revises Section 2 Scope of Work and replaces with the Scope of Work further described in Exhibit A to this First Amendment and includes Consultant’s Standard Districting Scope of Work.
4. The Agreement provided Consultant agrees to the following in Section 5 a. of the agreement:
“PAYMENT
a. The City agrees to pay CONSULTANT monthly, in accordance with the payment rates and terms and the Payment Schedule as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed Twelve-Thousand-TwoHundred-Fifty dollars ($12,250.00) for the total term of the Agreement unless additional payment is approved as provided in this Agreement.
5. This First Amendment to the Agreement replaces Exhibit B attached to this Amendment and revises Section 5 a. to the not to exceed amount as follows:
“PAYMENT
a. The City agrees to pay CONSULTANT monthly, in accordance with the payment rates and terms and the Payment Schedule as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed Forty-nine-thousand dollars ($49,000.00) for the total term of the Agreement unless additional payment is approved as provided in this Agreement. The not to exceed amount of $49,000 includes the $12,250 paid on the Agreement plus an additional $36,500 for the services described in Exhibit A to this Amendment for a total rounded to $49,000 and this will include two in person meetings (total $6000) and two virtual meetings ((total $3000).
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Professional Services Agreement 07.19.2022
6. Except as modified by this First Amendment, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, City and Catacutan have executed this First Amendment as of the day and year written below.
CITY OF PACIFIC GROVE CONSULTANT
By: By:
Mayor Consultant
Date: Date:
By:
City Attorney
Date:
Attachments: Exhibit A Scope of Services
Exhibit B Payment Schedule
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Professional Services Agreement 07.19.2022
EXHIBIT A
SCOPE OF SERVICES
The scope of services to be provided by CONSULTANT, which are summarized from the Request for Proposals below, are in addition to the detailed CONSULTANT proposal included asr EXHIBIT E.
CONSULTANT shall develop and provide a study that will include analysis of:
Districting Project Setup and coordination:
o Development of demographic database including Census Bureau and California Statewide Database data of total population, citizen voting age population, voter registration, voter turnout, and socio-economic data on language spoken at home, renters vs homeowners, age, education level, and other factors useful in identifying communities of interest;
o Incorporation of any Geographic Information System (GIS) data that the jurisdiction wishes to include and provides (often including school locations; school attendance areas; important local landmarks; or local neighborhood boundaries); o Initial telephonic discussion with about data, communities of interest, schedule, criteria and special concerns of the jurisdiction;
o Assist jurisdiction with developing a communications plan for public outreach, including suggestions for webpage content and design, public feedback logistics, and strategies for engaging constituents;
o Assist jurisdiction with developing a project plan, including a detailed timeline, goals and objectives, and specific deliverables list;
o Provide progress reports on an as-needed basis as determined by the project manager and meet regularly with project team;
o Any phone- or web-conference calls to discuss the project's progress or to answer any questions that may arise;
o Provide education and guidance on required redistricting criteria, and advice on selecting optional redistricting criteria, for staff and elected officials; o Preparation and delivery of reports required under Elections Code Section 21130(b); Districting Plan Development:
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o Creation of 2 to 4 initial draft maps;
o Analysis and preparation for presentation of all whole or partial plans submitted by the public;
o Conversion of all maps and reports to web-friendly versions; o Online posting of all maps to an interactive review website; o Create any requested additional and/or revised maps as requested; Plan implementation:
o Provide spatial data in GIS-friendly format of any dataset used or created for this project to staff upon request;
o Work with the County Registrar of Voters to implement the final adopted plan; Project Options
o Number of virtual or in-person meetings (and resulting per-meeting fee); o Consultant-prepared and -managed project website;
o Online mapping tool allowing residents to draw and submit maps; o Paper-based mapping tool allowing residents to draw and submit maps.
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o EXHIBIT B
PAYMENT SCHEDULE
Invoices shall be submitted to the City based on work performed. The total cost of services under this agreement shall not exceed $49,000.
1. Redistricting Project Elements (Covers everything listed above except for per-meeting and optional expenses): ............................. $ 16,500
2. Per-Meeting expense:
a. In-person attendance, per meeting ............................................................ $ 3,000 b. Virtual (telephonic, Zoom, etc.) attendance, per meeting ...................... $ 1,500 For each meeting, NDC will prepare meeting materials, including presentation materials and maps; present and explain key concepts, including mandatory and traditional redistricting criteria and “communities of interest”; facilitate conversations; answer questions; and gather feedback on existing and proposed boundaries. Per-meeting prices include all travel and other anticipated meeting-related expenses. Telephone calls to answer questions, discuss project status, and other standard project management tasks do not count as meetings and do not result in any charge.
3. Optional Project Elements:
a. Project website ........................................................................................ $ 6,500 b. Public mapping tool options:
i. Online and paper system including all elements below .............. $ 4,500
1. DRA (an easy-to-use online mapping tool, also known as "Dave's Redistricting App")
2. Public Participation Kit paper-based mapping tool
c. Public Participation Kit mapping tool alone ...................................... $ 3,000 Credit for Work Already Performed on Demographic Analysis: .... ($ 3,500) PGCC 10-2-24
Agenda No. 12 B
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Debby Beck, Councilmember, Luke Coletti, Councilmember MEETING DATE: October 02, 2024
SUBJECT: "The Butterflies" Art Donation Subcommittee Report CEQA: Does not constitute a Project per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
1. Receive the report.
2. Alternatively, discuss and take other action related to this item.
DISCUSSION
At its September 4, 2024, meeting the City Council discussed Nader Agha’s proposed gift of a large stained-glass window titled "The Butterflies." The Council took the following action:
Discussed proposed gift of a stained-glass window and created a subcommittee to look at locations for the stained-glass window and report back to council the first week in October.
The September 4, 2024, agenda report describes the window as follows: a 12' x 8' stained-glass window, consisting of three panels forming a semicircle of fluttering monarchs, which was designed by Nader Ahga and spent decades as the feature fenestration of the Holman Building.
The Subcommittee reviewed the plan set for the Holman Building Condominium Project and located a detail for the window (see page 2 of Attachment-1). The detail indicates the window is approximately 19’ wide.
As the theme of the piece is Monarch butterflies, the Subcommittee concluded the best location for the proposed gift would be the Pacific Grove Museum of Natural History. On Sept 18, 2024, the Subcommittee met with Museum Director Rachel Miller. We discussed where the piece might be placed and agreed the arched window on the south wall was likely the best location. The concept would be to enclose the piece in a weatherproof frame that is mounted to the outside of the building. The Subcommittee developed a concept image showing the piece at this location (see page 1 of Attachment-1).
An alternate location would be to individually hang the three panels at City Hall. A stained-glass window from the Old Methodist Church currently hangs at City Hall (see Attachment-2).
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If the donor wishes to pursue either of these two locations more detailed plans will need to be developed and brought to Council for approval.
This concludes the Subcommittee’s involvement.
OPTIONS
1. Take no action.
2. Provide alternate direction.
FINANCIAL IMPACT:
There is no cost associated with receiving the report.
GOAL ALIGNMENT: Not Applicable.
Attachments
1 - “The Butterflies” Window at Museum
Methodist Window at City Hall
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