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HomeMy Public PortalAbout2021-10-12 Item 11 Resolution of Intent California Voter Rights ActCITY COUNCIL AGENDA REPORT IT %? ^s f?R CITY OF MILLBRAE 621 Magnolia Avenue Millbrae, CA 94030 SUBJECT: Resolution of Intent California Voter Rights Act ATTACHMENTS: 1. March 5, 202 1, Letter from Kevin L Shenkman 2. Resolution Declaring the City of Millbrae's Intent to Transition from an At-Large Election System to a District-Based Election System Report No. ^-} ^ Agenda Item: \ \ For Agenda of: Department: Originator:Thomas C. Williams ^ity Manger Approve^ Budget Action: D Yes No Finance Review: N/A REPORT TYPE: S ACTION D INFORMATIONAL ITEM TYPE: D CONSENT D PUBLIC HEARING D EXISTING BUSINESS S NEW BUSINESS RECOMMENDATION: Adopt a resolution of intention ("Resolution") to begin the transition from at-large to by-district elections, pursuant to Elections Code section 10010, Government Code 34886, and the California Voting Rights Act ("CVRA"). BACKGROUND: The City ofMillbrae ("City") currently has an at-large election system, where each of the City's five Councilmembers are elected by voters throughout the City. Councilmembers are elected for a four-year term, and the Mayoral seat is rotated annually. The City received a letter on March 5,2021, from attorney Kevin Shenkman asserting that the City's at-large electoral system violates the CVRA. (Attachment 1). Mr. Shenkman's letter claims that racially polarized voting may occur in the City and threatens litigation unless the City voluntarily converts to district-based elections for Councilmembers. "Racially polarized voting" means voting in which there is a difference in the choice of candidates or other electoral choices that are preferred by voters of a protected class based on their ethnicity, rather than in the electoral choices that may be preferred by voters in the rest of the electomte. Specifically, the letter asserts that the City's at-large electoral system dilutes the ability of Latinos and Asians, both protected classes, to elect candidates of their choice or otherwise influence the outcome of the City's Council elections, and that, as a result, the City's at-large election system violates the CVRA. Mr. Shenkman is a prolific CVRA plaintiffs' attorney that has sent similar letters to dozens - if not hundreds - of other cities throughout the state, and has filed a number of lawsuits that have resulted in millions of dollars of attorneys' fees. Page 1 of 4 Page 2 of 4 The City does not believe it is in violation of the CVRA, and is confident that its minority populations have been well represented by the current at-large system. Indeed, Mr. Shenkman has provided no proof of polarized voting in the City of Millbrae. However, as discussed in more detail below, City staff is recommending that the City Council approve the Resolution and begin the transition to by-district elections for the sole reason of avoiding spending potentially millions of dollars of taxpayer funds defending a lawsuit. The CVRA is heavily slanted in favor of plaintiffs, and the risks of losing a lawsuit are significant, even though the City believes no vote dilution occurs in the City elections. The CVRA only applies to jurisdictions with at-large elections, and as a result, if the City were to adopt a by- district method of election, the City would be immune from challenge. A by-district method of election is one where the city is divided into separate districts, each with one councilmember who resides in the district and who is just chosen only by the electors residing in that particular district. The City Council would have the option to retain an at-large mayor under a by-district method of election (with four councilmembers elected by district under a district-based election system), or have five Councilmembers elected by district, with a rotating mayor. DISCUSSION: California Voting Rights Act The CVRA was signed into law in 2002, and only applies to jurisdictions, like the City, that utilize an at-large election method where voters of the entire jurisdiction elect each of the members of the City Council. The CVRA prohibits an at-large method of election that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election. The law’s intent is to significantly expand protections against vote dilution over those provided by the Federal Voting Rights Act of 1965 (“FVRA”). The law was also motivated, in part, by the lack of success by plaintiffs in California in lawsuits challenging at-large electoral systems brought under the FVRA. The passage of the CVRA made it easier for plaintiffs to prevail in lawsuits against public entities by removing a number of procedural safeguards and burden of proof requirements that are in the FVRA. In fact, the CVRA was authored by some of the very attorneys who have since made millions of dollars prosecuting CVRA cases. Specifically, under the FVRA, four factors must be met in order to establish a violation, including: (1) the “geographically compact” FVRA precondition (e.g., can a majority-minority district be drawn?), and (2) the “totality of the circumstances” or “reasonableness” test. The CVRA removes both of those factors. 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; Higginson v. Xavier Becerra (9th Cir. 2019) 786 Fed.Appx. 705.) Under the CVRA, proof of intent on the part of voters or elected officials to discriminate against a protected class is not required. As a result, cities and school districts throughout the State of California have increasingly been facing legal challenges to their “at-large” systems of electing members. Almost all cities that have received a legal challenge have voluntarily agreed to change to district-based elections. Those that have opposed CVRA challenges in courts have ultimately either voluntarily adopted, or have been forced to adopt, by district elections, as well as forced to pay hundreds of thousands to millions in their own attorneys’ fees, as well as the plaintiffs’ attorneys’ fees. In fact, other than the City of Santa Monica – which lost in the trial court, prevailed in the Court of Appeal, and now has a case pending in the California Supreme Court – every single public agency that has litigated a CVRA case to conclusion has lost. Page 3 of 4 As referenced above, the CVRA grants a prevailing plaintiff the right to recover their reasonable attorneys’ fees and expert witness fees. This has resulted in payment of very large amounts of money in attorneys’ fees by cities that have chosen to litigate the CVRA challenge. There is no fee shifting provision that would provide the City its attorneys’ fees in the event that the City prevailed. Almost all cities that have received a legal challenge have settled claims out of court by agreeing to voluntarily shift to district-based elections. Those that have opposed CVRA challenges in courts have ultimately either voluntarily adopted, or have been forced to adopt, district-based elections by the court. The CVRA grants a prevailing plaintiff the right to recover reasonable attorneys’ fees and expert witness fees. This has resulted in payment of very large amounts of money in attorneys’ fees by cities that have chosen to litigate the CVRA challenge. For example, some of the notable CVRA attorneys’ fee settlement amounts that have been reported include: a $4.5 million settlement in the City of Palmdale; a $3 million settlement in the City of Modesto; and a $1.1 million settlement in the City of Anaheim. Locally, the City of Santa Clara recently undertook a legal defense of its at-large election system and lost, was ordered by the court to pay approximately $4.5 million in plaintiffs’ attorneys’ fees, after spending $1.5 million on their own attorneys. These payments do not include the payments made to cities’ own attorneys, and further, all of these jurisdictions lost control over the districting process, and had district maps imposed on them by the plaintiffs. Here, a voluntarily transition to districts allows the City and its own citizens to retain control of the future district boundaries. As mentioned above, the City of Santa Monica currently has a case pending before the California Supreme Court. In that case, plaintiffs have demanded approximately $22 million in attorneys’ fees for just the trial court proceedings. 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 Code (AB 350) 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, then the city is given 45 days of protection from litigation to assess its situation. If within that 45 days, the city adopts a resolution declaring the Council’s intent to transition from at-large to by-district based elections, outlining the steps to be taken to facilitate that transition, and estimating a time frame for action, then the CVRA prohibits a potential plaintiff from filing a CVRA action for an additional 90 day period. (Elec. Code § 10010(e)(3).) The city and the prospective plaintiff may enter into a written agreement to extend that 90 day time period for up to an additional 90 days in order to provide additional time to conduct public outreach, encourage public participation, and receive public input. Thus, the legislation provides time for a city to assess and implement a transition to a district- based system before a lawsuit may be filed. The legislation sets out a number of steps a city must take in the effort to assess and transition to a district- based election system, which is laid out in further detail below. Under Elections Code section 10010, a city’s liability is capped at $30,000 if it follows this safe harbor process after receiving a threat, and the plaintiff must show financial documentation that these costs were actually incurred. Transition from At-Large to District-Based Elections Under Elections Code section 10010, the City is required to hold at least four public hearings within the allotted 90 day “safe harbor” period, although the City may seek in additional 90 day extension to allow for adequate public input. The first two public hearings will give the community an opportunity to provide input on the composition of the districts before any maps are drawn. Subsequently, draft district maps will be drawn and two additional public hearings (hearings three and four) will be held for the public to provide input regarding Page 4 of 4 the content of the draft maps and proposed sequence of elections. The maps must be published at least seven days before the public hearings. The fifth, and final, public hearing will be for the Council to consider an ordinance that establishes the City’s district-based elections. By law, there is no ability to cut short or extend the terms of sitting councilmembers through this process. FISCAL IMPACT: The costs to implement the procedures to transition from an at-large to a district-based election system within the safe harbor time period provided by the CVRA will include approximately $80,000 for outside legal counsel and a demographer. There will also be potential attorneys’ fees to Mr. Shenkman that are limited to not more than $30,000 (plus an annual adjustment for inflation) if the City meets the CVRA time limits. Those expenses are not included in the FY 2021/22 budget and will therefore be included in the FY 2021/22 mid- year budget. RECOMMENDATION: Adopt a resolution declaring the City’s intent to transition from an at-large election system to a district- based election system and direct staff to proceed with the required public meetings to create council districts. lllWttMg;. 28905 Wight Road Malibu, California 90265 (310)457-0970 klshenkmari@shenlgnanhyghes^om. VIA CERTIFIED MAIL RECEIVED MAR - 8 2021 City of Millbrae Administration Department March 5, 2021 Elaine Tran - City Clerk City ofMillbrae 621 Magnolia A. ve. Millbrae, CA 94030 Re: Violation of California Voting Rights Act I write on behalf of our client, Southwest Voter Registration Education Project and its members residing within the City of Millbrae ("Millbrae" or "City") as well as You You Xue. Millbrae relies upon an at-large election system for electing candidates to its governing board. Moreover, voting within the City is racially polarized, resulting in minority vote dilution, and, therefore, the City's at-large elections violate the California Voting Rights Act of 2001 ("CVRA"). I note that Mr. Xue wrote to you previously to notify you of the City's violation of the CVRA, and that letter was essentially ignored by the City. I tmst that you will not ignore this correspondence. 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 ofModesto (2006) 145 Cal.App.4"' 660, 667 (ttSanchez"\ 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 bare candidates in the voter's district, and the 435 candidates receiving the most nationwide votes would be elected. At-large elections thus allow a 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) (it angles'"). 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 ATTACHMENT 1 March 5, 2021 Page 2 of 4 strength" of minorities. Id. at 47; see also id. at 48, fa. 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 defeat the choices of minority voters." Gingles, at 47. 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; ^ee also Boyd & Markman, 77;e 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 ofPalmdale (2014) 226 Cal. App. 4"- 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. Corn. 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 minority group demonstrate that it is sufficiently large and geographically compact to 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. Corn. 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 March 5, 2021 Page 3 of 4 more probative to 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. As of the 2010 Census, conducted by the United States Census Department, Latinos comprised 11.9% of the City's population, and Asians comprised 42.8% of the City's population of 21,532. The complete absence of Latino representation on the City's governing board, and consistent underrepresentation of Asians on the governing board, is revealing. Millbrae's at-large system dilutes the ability of Latinos and Asians (each, a "protected class") - to elect candidates of their choice or otherwise influence the outcome of the District's elections. The City's election history is illustrative. For example, in 2020 and 2018, You You Xue lost despite significant support from the Asian community, due to a lack of support from non-Asians. It appears that the City's recent elections have been devoid of Latino candidates, and while opponents of voting rights may claim that indicates an apathy among the Latino community, the courts have held that is an indicator of vote dilution. (See Westwego Citizens for Better Government v. CityofWestwego, 872 F.2d 1201, 1208-1209, n. 9 (5th Cir. 1989).) As you may be aware, in 2012, we sued the City ofPalmdale 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 racially polarized elections for Millbrae's city council and exogenous elections, we urge the City to voluntarily change its at-large system of electing its City Council. Otherwise, on behalf of residents within the jurisdiction, we will be forced to seek judicial relief. Please advise us no later than April 25, 2021 as to whether you would like to discuss a voluntary change to your current at-large system. We look forward to your response. March 5, 2021 Page 4 of 4 Very truly yours, Kevin I. Shenkman ATTACHMENT 2 CITY OF MILLBRAE, COUNTY OF SAN MATEO STATE OF CALIFORNIA *** RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILLBRAE 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 WHEREAS, the City of Millbrae, California (“City”) is a general law city, duly organized under the constitution and laws of the State of California; and WHEREAS, the members of the Millbrae 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; and WHEREAS, the City has received a “form” demand letter from Mr. Kevin Shenkman, alleging violations of the California Voting Rights Act (“CVRA”) and demanding that the City adopt by-district elections, that is essentially a copy pasted version of letters Mr. Shenkman has sent to cities all over the state; and WHEREAS, the demand letter from Mr. Shenkman does not identify his clients and purported potential plaintiffs, the supposed Southwest Voter Project Education Project members in Millbrae; and WHEREAS, the demand letter from Mr. Shenkman does not provide data supporting racially polarized voting or vote dilution in Millbrae; and WHEREAS, The City Council believes that it is not currently in violation of the CVRA; and WHEREAS, the demand letter from Mr. Shenkman includes factually inaccurate information about support for various candidates in previous Millbrae elections; and WHEREAS, the Millbrae City Council believes that the at-large election model provides better representation for the City of Millbrae and is the preferred election model by Millbrae voters; and WHEREAS, The City Council has determined that, notwithstanding the fact that Mr. Shenkman’s letter lacks any proof of rationally polarized voting, vote dilution, or a violation of the CVRA, 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, pursuant to the provisions of the CVRA, to avoid spending potentially millions of taxpayer dollars in litigation costs; 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 intends to make this transition from an at-large system to a by- district system in accordance with the procedural rules outlined in Government Code Section 34886 and Elections Code 10010; 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 of the proposed boundaries of the 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 WHEREAS, once the draft map(s) have 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 reserves its rights to stop this process prior to actual adoption of by-district elections at any time, and by adopting this resolution, the City Council does not bind itself to any one course of action; and WHEREAS, The City Council further reserves its rights to, following any actual adoption of by-district elections by ordinance, to revert back to at large elections without a vote of the people of the City, in the event of changes or amendments to the CVRA, whether by the Legislature or the courts, including but not limited to a ruling in favor of the City of Santa Monica in the pending California Supreme Court Case Pico Neighborhood Association v. City of Santa Monica, Case No. S263972. NOW, THEREFORE BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF MILLBRAE, 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 being the transition to 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. 3. 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 in the next 90 to 180 days. The City will publicly release a draft schedule of the public hearings in advance, within a reasonable timeframe from this Resolution, and post the same on its website. 4. 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. 5. 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. 6. All public hearings shall be noticed on the City’s website, and in addition, 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. 7. The City Manager is authorized to take any and all other necessary actions to give effect to this Resolution. 8. This Resolution shall become effective immediately upon its adoption. REGULARLY PASSED AND ADOPTED this 12th day of October, 2021. _______________________________ Mayor ATTEST: __________________________ City Clerk