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HomeMy WebLinkAbout2017-05-09; City Council; ; Approve a Resolution of intention to transition from at-large to district based elections pursuant to Elections Code section 10010(e)(3)(A)CITY COUNCIL Staff Report Meeting Date: To: From: Staff Contact: May 9, 2017 Mayor and City Council Kevin Crawford, City Manager Celia Brewer, City Attorney 760-434-2891 CA Review gf,,{_ Subject: Approve a Resolution of intention to transition from at-large to district- based elections pursuant to Elections Code section 10010(e)(3)(A) Recommended Action Approval of a Resolution of intention to transition from at-large to district-based elections pursuant to Elections Code section 10010(e)(3)(A). Executive Summary On April 11, 2017, the City received a letter from attorney Kevin Shenkman of the law firm Shenkman & Hughes threatening to sue the city for alleged violations of the California Voting Rights Act ("CVRA") (Elec. Code§§ 14025-14032} unless the city voluntarily converts to elections by district. Mr. Shenkman and his firm have served similar letters and subsequently filed numerous actions in recent years against dozens of cities and other public agencies for alleged CVRA violations. A copy of Mr. Shenkman's letter is attached to this staff report (Attachment 1). The CVRA only applies to jurisdictions that utilize an "at large" election method, where voters of the entire jurisdiction elect the members of the City Council. The CVRA applies even to charter cities such as the City of Carlsbad. The threshold to establish liability under the CVRA is extremely low. Prevailing CVRA plaintiffs are guaranteed to recover their attorneys' fees and costs. Every government defendant in the history of the CVRA that has challenged the conversion to district elections has either lost in court or settled, and has also been forced to pay at least some portion of the plaintiffs' attorneys' fees and costs. Many of the attorneys' fees and awards that local governments have been forced to pay have amounted to millions of dollars. Discussion The CVRA was specifically enacted in 2002 to eliminate several key burden of proof requirements that exist under the Federal Voting Rights Act of 1965 ("FVRA") (52 USC§ 10301 et seq.) after several jurisdictions in California successfully defended themselves in litigation brought under the FVRA. Under the FVRA, four factors must be met in order to establish a violation. The CVRA removes two ofthese factors. It eliminated what is known as the "geographically compact" FVRA precondition (e.g., can a majority-minority district be drawn?) as well as the "totality of the Item #13 May 9, 2017 Page 1 of 12 circumstances" or "reasonableness" test. Instead, under the CVRA, the only "element" a plaintiff must establish is that racially polarized voting leads to the defeat of candidates preferred by a "protected class" (Latino, African-American, Asian-American, or Native American) voters in a jurisdiction with at-large elections. As a result, the CVRA is tilted heavily in favor of plaintiffs, and was enacted with that specific intent in mind. Despite its removal of key safeguards contained in the FVRA, the California courts have held that the CVRA is constitutional. (See Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660.) Over the relatively short 15-year history of the CVRA, and only after an initial challenge to it was resolved in 2006, defendant public agencies have paid nearly $15 million to CVRA plaintiff attorneys. (See Table of Results of CVRA Litigation (Attachment 2).) The City of Modesto, which challenged the CVRA's constitutionality, ultimately paid $3 million to the plaintiffs' attorneys. The City of Palmdale, which also aggressively litigated a CVRA claim, ultimately paid $4.5 million in attorneys' fees. Importantly, these figures do not include the tens of millions of dollars spent by government agency defendants paying for their own attorneys and associated defense costs. Also important to note is that both cities ultimately ended up converting to district elections. In Palmdale, the judge ordered both the use of the district map drawn by plaintiffs and that all five Council members immediately stand for election, regardless of when their current term was due to end. Due to the combination ofthe CVRA's low burden to trigger mandatory districting and its mandatory attorneys' fees provision, all CVRA cases that have been filed have ended with the defendant governmental agency implementing a district election system and paying some sort of attorneys' fee payment. (See Attachment 2.) The expense of CVRA claims explains in part why no entity has brought a challenge of the California statute to the U.S. Supreme Court. All of the cases have settled prior to that step, generally with significant legal bills. In response to the substantial costs imposed upon cities and other public agencies in defending CVRA suits, in 2016 the California Legislature amended the Elections Codes to simplify the process of converting to by-district elections and to provide a "safe harbor" process to protect agencies from litigation. If a City receives a demand letter, such as the case here, then the city is given 45 days of protection from litigation to assess its situation. If within that 45 days, a city adopts a resolution declaring the Council's intent to transition from at-large to district based elections, outlining the steps to be taken to facilitate that transition, and estimating a time frame for action, then a potential plaintiff is prohibited from filing a CVRA action for an additional 90 day period. (Elec. Code §10010(e)(3).) Staff has scheduled a closed session prior to this agenda item to discuss the threatened CVRA litigation and to receive a briefing as to legal implications and potential costs of litigation. Staff provides this opportunity for the City Council to consider taking advantage of the "safe harbor" provisions by voluntarily implementing a by-district election system to protect the City's taxpayers from the risk of future litigation. This recommendation is not based on any admission or concession that the City would ultimately be found to have violated the CVRA; rather, the risks and costs associated with protracted CVRA litigation -particularly in light of results in all other cities that have fought to retain at-large voting-cannot be ignored. The Item #13 May 9, 2017 Page 2 of 12 public interest may be ultimately better served by a by-district electoral system if converting to that system avoids a significant attorneys' fees and cost award. The attached Resolution, if approved, would affirm Council's intent to adopt a by-district election system . The draft resolution also includes, as an attachment, the tentative timeline for implementing transition to by-district elections, including the schedule for the required public hearings. Staff recommends approval of this Resolution. If the City Council adopts the attached resolution, pursuant to Elections Code 10010(a), the Council must still hold a total of five public hearings before a by-district electoral system can be approved: two must be held before proposed district boundaries have been drawn, two must be held after proposed district maps have been generated, and finally, the Council must consier the actual ordinance that would establish district elections at a fifth public hearing. The city has also retained experts to evaluate the city's position under the CVRA and to advise on risks and potential liabilities. Douglas Johnson, an expert demographer, has extensive experience drawing districts in compliance with the requirements of both the FVRA and CVRA. If the city elects to transition to district elections, Dr. Johnson will draw three or four draft district maps after the first two public hearings. The City Council will have the ability to request modifications to the options presented or a different option. Fiscal Analysis The costs of defending the city's district wide election system in court are projected to be significant due to having to pay the plaintiffs' fees and costs. Awards in these cases have reached upwards of $3,500,000. When sued, even the settlements reached by cities have included paying the plaintiffs' attorneys fees. If the City Council chooses to maintain its at-large elections and defend the threatened lawsuit, the costs and attorneys' fees would likely exceed $1,000,000. The demographic consultant cost is anticipated to be approximately $35,000. Special counsel fees required to voluntarily convert to district elections are estimated to be $30,000. Additional legal costs will be incurred for additional analysis and public hearings. The city's good faith and considered approach to by-district elections may forestall further threats and demands for attorneys' fees, but other jurisdictions have suffered such demands even after initiating such efforts. Next Steps If the City Council chooses to adopt the proposed Resolution (Attachment 3), pursuant to the schedule attached to that Resolution, three public hearings will be held concerning the proposed district boundaries on dates yet to be determined. At the conclusion of the fifth public hearing, City Council may introduce for first reading an ordinance establishing the district boundaries and the by-district election method pursuant to Government Code section 34886 and Elections Code 10010. Item #13 May 9, 2017 Page 3 of 12 Environmental Evaluation (CEQA) The requested action is not a project within the definition ofthe California Code of Regulations, Title 14, Chapter 3, section 15378(a) since the action has no potential for resulting in either a direct change in the environment or a reasonably foreseeable indirect change in the environment. Public Notification This item was noticed in accordance with the Ralph M . Brown Act and was posted and distributed at least 72 hours prior to the meeting date. Exhibits 1. 2. 3. December 16, 2015 Correspondence Table of Results of CVRA Litigation Resolution Item #13 May 9, 2017 Page 4 of 12 SHENKMAN & HUGHES ATTORNEYS MALIE<t!. C,>.LiFORNIA VIA CERTIFIED MAIL April 5, 2017 Barbara Engleson City Clerk -City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: Violation of California Voting Rights Act 28905 Wight Road Malibu, California 90265 (310) 457-0970 kshenkman@shenkmanhughes.com RECEIVED APR I I 2017 CITY OF CARLSBAD CITY CLERK'S OFFICE The City of Carlsbad ("Carlsbad") relies upon an at-large election system for electing candidates to its City Council. Moreover, voting within Carlsbad is racially polarized, resulting in minority vote dilution, and therefore Carlsbad's at- large elections violate the California Voting Rights Act of 2001 ("CVRA"). The CVRA disfavors the use of so-called "at-large" voting -an election method that permits voters of an entire jurisdiction to elect candidates to each open seat. See generally Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 667 ("Sanchez"). For example, if the U.S. Congress were elected through a nationwide at-large election, rather than through typical single-member districts, each voter could cast up to 435 votes and vote for any candidate in the country, not just the candidates in the voter's district, and the 435 candidates receiving the most nationwide votes would be elected. At-large elections thus allow a bare majority of voters to control every seat, not just the seats in a particular district or a proportional majority of seats. Voting rights advocates have targeted "at-large" election schemes for decades, because they often result in "vote dilution," or the impairment of minority groups' ability to elect their preferred candidates or influence the outcome of elections, which occurs when the electorate votes in a racially polarized manner. See Thornburg v. Gingles, 478 U.S. 30, 46 (1986) ("Gingles"). The U.S. Supreme Court "has long recognized that multi-member districts and at-large voting schemes may operate to minimize or cancel out the voting strength" of minorities. Id. at 47; see also id. at 48, fu. 14 (at-large elections may also cause elected officials to "ignore [minority] interests without fear of political consequences"), citing Rogers v. Lodge, 458 U.S. 613, 623 (1982); White v. Register, 412 U.S. 755, 769 (1973). "[T]he majority, by virtue of its numerical superiority, will regularly Item #13 May 9, 2017 Page 5 of 12 April 5, 2017 Page 2 of 4 defeat the choices of minority voters." Gingles, at 4 7. When racially polarized voting occurs, dividing the political unit into single-member districts, or some other appropriate remedy, may facilitate a minority group's ability to elect its preferred representatives. Rogers, at 616. Section 2 of the federal Voting Rights Act ("FVRA"), 42 U.S.C. § 1973, which Congress enacted in 1965 and amended in 1982, targets, among other things, at- large election schemes. Gingles at 37; see also Boyd & Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History (1983) 40 Wash. & Lee L. Rev. 1347, 1402. Although enforcement of the FVRA was successful in many states, California was an exception. By enacting the CVRA, "[t]he Legislature intended to expand protections against vote dilution over those provided by the federal Voting Rights Act of 1965." Jauregui v. City of Palmdale (2014) 226 Cal. App. 4th 781, 808. Thus, while the CVRA is similar to the FVRA in several respects, it is also different in several key respects, as the Legislature sought to remedy what it considered "restrictive interpretations given to the federal act." Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 2. The California Legislature dispensed with the requirement in Gingles that a jillinority group demonstrate that it is sufficiently large and geographically compact LJQ constitute a "majority-minority district." Sanchez, at 669. Rather, the CVRA requires only that a plaintiff show the existence of racially polarized voting to establish that an at-large method of election violates the CVRA, not the desirability of any particular remedy. See Cal. Elec. Code § 14028 ("A violation of Section 14027 is established if it is shown that racially polarized voting occurs ... ") ( emphasis added); also see Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 3 ("Thus, this bill puts the voting rights horse (the discrimination issue) back where it sensibly belongs in front of the cart (what type of remedy is appropriate once racially polarized voting has been shown).") To establish a violation of the CVRA, a plaintiff must generally show that "racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision." Elec. Code § 14028(a). The CVRA specifies the elections that are most probative: "elections in which at least one candidate is a member of a protected class or elections involving 'ballot measures, or other electoral choices that affect the rights and privileges of members of a protected class." Elec. Code § 14028(a). The CVRA also makes clear that "[ e ]lections conducted prior to the filing of an action . . . are more probative to Item #13 May 9, 2017 Page 6 of 12 April5,2017 Page 3 of 4 establish the existence of racially polarized voting than elections conducted after the filing of the action." Id. Factors other than "racially polarized voting" that are required to make out a claim under the FVRA -under the "totality of the circumstances" test -"are probative, but not necessary factors to establish a violation of' the CVRA. Elec. Code § 14028( e ). These "other factors" include "the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of at-large elections, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns." Id. Carlsbad's at-large system dilutes the ability of Latinos (a "protected class") -to elect candidates of their choice or otherwise influence the outcome of Carlsbad's council elections. The elections of 2004 and 2006 are illustrative. In 2004, a Latino candidate - Ofelia Escobedo -ran for city council and lost. In 2006, two Latino candidates - Ron Alvarez and Roland Chicas -ran for city council and lost. Each of those candidates received significant support from Latino voters, but fell short of securing a seat in Carlsbad's at-large election due to the bloc voting of Carlsbad's majority non-Latino electorate. In fact, as a result of this racially polarized voting, Carlsbad appears to have had no Latino council members in its recent history. According to recent data, Latinos comprise approximately 13.3% of the population of Carlsbad. The contrast between the significant Latino proportion of the electorate and the absence of Latinos to be elected to the City Council is telling. As you may be aware, in 2012, we sued the City of Palmdale for violating the CVRA. After an eight-day trial, we prevailed. After spending millions of dollars, a district-based remedy was ultimately imposed upon the Palmdale city council, with districts that combine all incumbents into one of the four districts. Given the lack of Latino representation on the city council in the context of racially polarized elections, we urge Carlsbad to voluntarily change its at-large system of electing council members. Otherwise, on behalf of residents within the jurisdiction, we will be forced to seek judicial relief. Please advise us no later than May 22, 2017 as to whether you would like to discuss a voluntary change to Item #13 May 9, 2017 Page 7 of 12 your current at-large system. We look forward to your response. Very;;t?s, Kevin I. Shenkman April 5, 2017 Page 4 of 4 Item #13 May 9, 2017 Page 8 of 12 Exhibit 2 Attorneys' Fees Settlements Paid by Other Jurisdictions City or Political Subdivision Attorneys' Fees Paid to Plaintiff Notes Ceres Unified School District $3,000 Settlement Cerritos Community College $55,000 Settlement District City of Anaheim $1.2 million Settlement City of Bellflower Undisclosed Settlement City of Compton Approximately $170,000 Settlement City of Escondido $385,000 Settlement City of Merced $42,000 Settlement City of Modesto $3 million Settlement City of Palmdale $4.7 million City lost its challenge in court and subsequently reached a settlement City of Santa Barbara $600,000 Settlement City of Santa Clarita $600,000 Settlement includes provision to move to cumulative voting City of Tulare $225,000 Settlement City of Whittier $1 million Court Award Compton Community College $40,000 Settlement District Hanford Unified School District $118,000 Settlement Madera Unified School District $162,500 Court Award Placentia $20,000 Settlement San Mateo County $650,000 Settlement Santa Clarita Community $850,000 Settlement College District Tulare Local Healthcare District $500,000 Settlement Item #13 May 9, 2017 Page 9 of 12 RESOLUTION NO. 2017-083 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, EXPRESSING THE CITY COUNCIL'S INTENTION, PURSUANT TO ELECTIONS CODE SECTION 10010(e)(3)(A), TO INITIATE PROCEDURES FOR ESTABLISHING AND IMPLEMENTING BY-DISTRICT ELECTIONS FOR CITY COUNCIL MEMBERS EXHIBIT 1 WHEREAS, the City of Carlsbad, California ("City'') is a charter city, duly organized under the constitution and laws of the State of California; and WHEREAS, four of the members of the Carlsbad City Council are currently elected in at-large elections, in which each City Council member is elected by all registered voters of the entire City, with the mayor being separately elected by all registered voters of the entire City, pursuant to California Government Code sections 34871 and 34900 et seq.; and WHEREAS, Section 34886 of the Government Code authorizes any city to change to a by-district system or by-district system with an elective mayor without the need to put such a change to voters; and WHEREAS, the City Council has determined that it is in the best interest of the City to move from its current at-large electoral system to a by-district election for members of the City Council in furtherance of the purposes of California Voting Rights Act; and WHEREAS, the City moves to make this transition from an at-large system to a by-district system in accordance with the new procedural rules outlined in Government Code Section 34886 and Elections Code 10010; and WHEREAS, the City received a letter threatening action under the California Voting Rights Act on April11, 2017, less than forty-five (45) days before the date of this Resolution; and WHEREAS, the City will begin by working with an experienced demographer to assist the City in establishing maps for a by-district electoral system; and WHEREAS, before drawing a draft map ofthe proposed boundaries ofthe districts, the City will hold at least two (2) public hearings over no more than thirty (30) days, at which time the public is invited to provide input regarding the composition of the districts; and WHEREAS, the City will then publish and make available for release at least one (1) draft map of the new electoral districts, including the potential sequence of elections shown; and Item #13 May 9, 2017 Page 10 of 12 WHEREAS, once the draft map has been publicized for at least seven (7) days, the City will hold at least two (2) additional public hearings, over no more than forty-five (45) days, at which time the public is invited to provide input regarding the content of the draft map and the proposed sequence of elections prior to the public hearing at which the City Council adopts a map; and . WHEREAS, if a draft map is revised at or following a public hearing, the revised map will be published and made available to the public at least seven (7) days before the City chooses to adopt it; and WHEREAS, in determining the final sequence of staggered district elections, the City Council will give special consideration to the purposes of the CVRA, and will take in to account the preferences expressed by the members of the districts; and WHEREAS, the City Council now wishes to adopt criteria to guide the establishment of electoral districts consistent with legal requirements including reasonable equal population and section 2 of the federal Voting Rights Act, as well as other concerns and considerations important to the City. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. The above recitals are true and correct and are incorporated herein by this reference. 2. The City Council hereby resolves, pursuant to Elections Code section 10010, to adopt a by-district election system by ordinance as authorized by California Government Code section 34886, for use in the City's General Municipal Election for City Council Members. 4. The City Council further resolves to retain a qualified demographer, hold at least five (5) public hearings and publish at least one (1) draft map and staggering sequence. 5. The City's redistricting/demographic consulting firm, acting under the supervision of the City Manager, is hereby authorized to direct and formulate one or more electoral district scenarios for review by the public and City Council at two or more public hearings if necessary, in accordance with the City's proposed timeline. 6. Working with the demographic consulting firm, staff is directed to publicize relevant maps, information, notices, agendas and other materials regarding by-district elections and to establish means of communication to answer questions from the public. Item #13 May 9, 2017 Page 11 of 12 EXHIBIT 1 7. All public hearings shall be noticed as follows: posting on the City's website at least ten (10) calendar days in advance of the hearing and publication at least ten (10) days in advance of the hearing in the newspaper adjudicated to provide notice within the City. 8. The City Manager is authorized to take any and all other necessary actions to give effect to this Resolution. 9. This Resolution shall become effective immediately upon its adoption. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 9th day of May, 2017, by the following vote, to wit: AYES: NOES: ABSENT: K. Blackburn, M. Schumacher, C. Schumacher. M. Hall, M. Packard. None. (SEAL) Item #13 May 9, 2017 Page 12 of 12 Leticia Reyes Subject: FW: District Elections Decision From: John Marshall [mailto:j ] Sent: Saturday, May 06, 2017 11:54 AM To: Council Internet Email <CityCouncil@carlsbadca.gov> Subject: District Elections Decision All Receive -Agenda Item # 1.3 For the Information of the: CITY COUNCIL ACM ./ CA ./ CC ./ Date S·lf • 11City Manager V"' I just read the letter from the law firm in LA county. It appears to be a threat to the city and it's residents suggesting the possibility of their activism will cause significant fmancial harm to us all. It also appears to me to be 'easy money' for the law firm if the city resists. Seems unlikely to me that a Malibu law firm on it's own has a benevolent interest in 13% of our population. It also seems unlikely that this estimated 13% of our population is all of voting age or even have the right to vote as citizens. I did not live in Carlsbad during the two elections cited by the Malibu lawyers, but nowhere do they suggest in the threat letter than any of the latino candidates were better qualified than any of the non-latino candidates. Shouldn't we all want the best representatives and not elect candidates from a particular neighborhood or who identify with a particular ethnic group? At the same time, the council may wish to ask the Office of the City Attorney, a direct report to the City Council how long it has been aware of the California Voting Rights Act (Elec. Code§§ 14025-14032) and ifthe Office disagrees with it or interprets it differently. It is not the Malibu law firm's fault that our City Council, our Office of the City Attorney ( 4 attorneys in all) and the City Manger have not made a case to the City Council to change to district voting or that perhaps, current and past Councils have ignored given advice. I suspect that there are plenty of records of opinions given and the resulting action or inaction. So, I would like to hear the City Council ask questions of: City Attorney Celia A. Brewer Senior Assistant City Attorney Paul Edmonson Assistant City Attorney Ron Kemp Deputy City Attorney Heather Stroud City Manger, Kevin Crawford Given the city's efforts to require developers to build inclusionary housing that is often subsidized or has limits on income and given that a sign,ificant number of qualifying residents are likely to be a member of an ethnic minority, it would seem that a most basic need is being addressed. Don't forget, city held (holds) a Barrio Workshop, so many who may advocate for district representation, may already have more sway that some of us who live in other parts of he city. OK, thanks for reading my comments. I hope to the at the next council meeting. 1