CITY COUNCIL STAFF REPORT
Meeting Date: March 06, 2023
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT RESOLUTION NO. ___-23 APPROVING NOTICE OF
INTENTION REGARDING TRANSITION TO DISTRICT-BASED
ELECTIONS
SYNOPSIS
On January 19, 2023, the City received a letter from Kevin Shenkman of Shenkman & Hughes, that claims the City’s at-large system of voting dilutes the ability of Latino and Asian voters to elect candidates of their choice or to otherwise influence the outcome of the City’s elections, and therefore violates the California Voting Rights Act. This report provides background on the California Voting Rights Act and the City’s options to respond to Mr. Shenkman’s demand letter.
DISCUSSION
Background
The City of Pleasant Hill currently elects its five-member City Council through an “at-large” electoral system in which each Council member may reside anywhere within the City’s boundaries, and each member is elected by the voters of the entire electorate to provide Citywide representation. This is in contrast to a “by district” electoral system where the City is divided into geographical districts, each Council candidate must reside in the district he or she will represent, and only voters within a given district vote for that district’s Councilmember.
On January 19, 2023, the City received a letter from Kevin Shenkman of Shenkman & Hughes on behalf of the Southwest Voter Registration Education Project and the Pleasant Hill Community Alliance, that claims the City’s at-large system of voting dilutes the ability of Latino and Asian voters to elect candidates of their choice or to otherwise influence the outcome of the City’s elections. As a result, Mr. Shenkman claims that the City’s at-large elections violate the California Voting Rights Act (“CVRA”). Mr. Shenkman must send this letter before he can file a lawsuit claiming the City has violated the CVRA.
Analysis
The California Voting Rights Act:
The CVRA (California Elections Code sections 14025 – 14032) became law in 2003. Like the federal Voting Rights Act of 1965, the CVRA attempts to prevent the disenfranchisement of protected classes.
A protected class is a class of voters who are members of a race, color, or language minority group (collectively referred to herein as “minority voters”.) With the passage of the CVRA, it became easier for citizens to sue cities and other agencies if they elect members of their governing bodies through “at-large” elections and if it can be proven that the votes of minority voters are being diluted by the (presumably White) majority of voters.
The CVRA does not mandate the abolition of at-large election systems, but makes the use of atlarge election systems more susceptible to legal challenge. The most common legal remedy for an alleged CVRA violation is to change from an at-large system to a by-district election system.
To prove a violation, plaintiffs must demonstrate “racially polarized voting” and “vote dilution.” Racially polarized voting occurs when there is a difference between the choice of candidates (or ballot measures) preferred by voters in a protected class and the choice of candidates (or ballot measures) preferred by voters 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 by a review of voting patterns that shows the protected class votes differently from the majority and is unable to elect the candidates of their choice or to influence elections for candidates or ballot measures.
Unlike the federal Voting Rights Act, the CVRA does not require the plaintiff to establish discriminatory intent on the City’s part, historical discrimination, or that minority voters live in a geographically compact area of the City. This was written into the law to make the burden of proving a violation easier for plaintiffs. Further, the CVRA allows successful challengers to recover reasonable attorneys’ fees and litigation costs (which include expert witness fees).
As a result of the low threshold of proof established by the CVRA, numerous public agencies throughout California have been facing challenges to their at-large election systems and have received demand letters similar to the one the City received. Further, no public agency has successfully defended a CVRA lawsuit after all appeals have been resolved. Many settlements have been over $30,000, while a few settlements have resulted in public agencies paying millions of dollars after the initiation of litigation. 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 each. The City of Santa Monica is currently litigating a similar lawsuit. The City lost at the trial level, but won at the court of appeal. However, that case is up on appeal to the Supreme Court and the outcome is uncertain. Plaintiffs in that case (represented by Mr. Shenkman) most recently claimed they will seek $22 million in attorney’s fees and costs from the City should they prevail in their lawsuit.
Because of the low threshold of proof, the low probability of litigation success, and the potential for being required to pay plaintiffs’ attorneys fees, many agencies have voluntarily changed from at-large elections to district-based elections rather than engage in potentially expensive and futile litigation.
To provide a “safe harbor” from expensive lawsuits and settlements, the California Legislature adopted Elections Code section 10010 which provides a procedure to transition to district-based elections. If these procedures are followed, prospective plaintiffs will be barred from filing a CVRA lawsuit and their attorneys’ fees and costs will be capped at approximately $34,000.
Action Options:
A. Procedure to Transition to By-District Elections
Deciding to go to by-district elections through the “safe harbor” provision triggers a very short and aggressive timeline. The timeline to transition is as follows:
(1) Receipt of a Demand Letter and Response Period.
Once the prospective plaintiffs have sent a demand letter, as Mr. Shenkman has done here, the prospective plaintiffs cannot sue the City for at least 45 days from the City’s receipt of the written notice. As noted below, if the City adopts the Resolution of Intention at the meeting, the prospective plaintiffs cannot sue for at least another 90 days, giving the City time to transition to by-district elections.
It is noted that the 45th day from January 19, 2022 (the date Mr. Shenkman’ letter was received) is Sunday, March 5, 2023. Pursuant to Elections Code section 15, if a legal deadline to act under the Elections Code falls on a State holiday, the deadline is continued to the next business day, which is this evening. All Sundays are deemed “holidays” under Government Code section 6700. Therefore, adoption of the proposed resolution this evening will be timely under the statute.
(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, discussing the steps it will undertake to facilitate the transition, and providing an estimated time-frame, the prospective plaintiff is barred from suing for at least 90 days from the date of the resolution’s adoption. It may be possible to extend this deadline, but only by mutual agreement of the plaintiffs and the City. (3) Public Hearings Prior to Drawing of District Map.
Before adopting district-based elections, the City must prepare a draft map or maps. Before drawing a map, however, 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’ composition.
(4) District Map Drawing.
An expert demographer is then hired to prepare a proposed map or maps. Each 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. (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 over a period of no more than 45 days 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, approve the map, and begin implementing district elections with the November 2024 election. (8) Attorneys’ Fees.
Should the Council ultimately adopt the ordinance establishing district-based elections within the 90-day time-frame, Mr. Shenkman will be barred from filing a CVRA lawsuit against the City. He could, however, within 30 days of the final adoption, demand reimbursement for the cost of the work product generated to support the notice. His demand must be made in writing and must be substantiated with financial documentation. The City must reimburse the potential plaintiff for reasonable costs incurred within 45 days of the written demand. The amount may not exceed approximately $34,000.
B. Proposed Resolution of Intention
If the Council prefers to stay within the “safe harbor” provisions described above, it should adopt the attached resolution of intention this evening. This commences the transition process, will stay any potential CVRA lawsuit and give the Council time to complete the process.
Alternative Options:
Alternatively, the Council could choose to reject Mr. Shenkman’s demand letter and defend a CVRA lawsuit if one is filed. If Mr. Shenkman then sues the City for allegedly violating the CVRA, the City will face significant defense costs, and, if Mr. Shenkman prevails, a significant award of attorneys’ fees and costs.
CEQA COMPLIANCE
As outlined in the attached Resolution of Intention, this action is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3), 15320 and 15378(b)(5) of the CEQA Guidelines.
FISCAL IMPACT
If the Council adopts the proposed resolution, an expert demographer will be needed to prepare the maps. That cost will be approximately $15,500. There will be additional costs incurred by the work of the City Attorney’s Office over the approximately four to five month process.
Finally, if the City adopts by-district elections voluntarily and within the law’s “safe harbor” provision, the City will be responsible for the potential plaintiffs’ attorneys’ fees and costs for a maximum amount of approximately $34,000 paid to Mr. Shenkman.
If the City decides not to move forward with the transition to by-district elections, and Mr.
Shenkman files a CVRA lawsuit against the City, the financial impact could be substantial and may even be in excess of $1 million to defend and/or settle such a lawsuit. As well, there will be significant staff resources required to defend a CVRA lawsuit.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
RECOMMENDED CITY COUNCIL ACTION
Adopt the proposed resolution and provide any additional direction to staff.
ALTERNATIVES TO RECOMMENDED ACTION
Provide alternative direction to staff.
ATTACHMENT(S):
Proposed Resolution of Intention
Demand Letter from Kevin Shenkman
Correspondence
Prepared by: Jim Priest, Best Best & Krieger LLP
Reviewed by: Janet Coleson, City Attorney
Approved by: June Catalano, City Manager