By Derek P. Cole and Sean D. De Burgh, Cota Cole & Huber LLPYour district receives a letter claiming the at-large elections for its governing board violates the California Voting Rights Act (“CVRA”). The letter claims “racially polarized voting” exists in your district’s elections and alleges that a particular class of voters’ power is diluted as a result. The letter threatens a lawsuit—and substantial attorney fees—if your district does not switch to “by district” elections. How do you respond?
This article answers the key questions that will arise if your district receives such a letter. It is intended to provide a practical discussion of your district’s options for converting to by-district elections when faced with potential CVRA liability. (A more comprehensive version of this article is available in the
Open Forum)
What is the CVRA and how is it Violated?The CVRA prohibits any political subdivision from using any at-large method of election that “impairs the ability of a protected class to elect candidates of its choice or influence the outcome of an election, as a result of the dilution or the abridgement of the rights of voters are members of the protected class….” (Elec. Code, § 14027.) An at-large voting system violates this standard when “racially polarized voting” (“RPV”) exists. (Id., § 14028(a).)
RPV exists when there is a difference in how members of a protected class vote versus members not within the protected class. (Id., § 14026(e).) Whether RPV exists is generally determined by statistical analyses performed by a qualified demographer.
Importantly, RPV is not determined solely by how the electorate voted in elections involving your agency’s governing board. In a CVRA lawsuit, the court may look at the voting preferences of groups in elections involving other agencies (such as cities, counties, and school districts), state elections (for the Assembly or Senate, for example), and ballot initiatives (state or local). (Id., §14028(a)-(b).)
An agency’s intent or lack of intent to discriminate also is not relevant in determining whether RPV exists. (Id., § 14028(d).) CVRA violations can occur—and often have been alleged to occur—in jurisdictions where elected bodies are perceived to be progressive on issues of race relations.
Finally, the fact that candidates of a protected class have been elected to a governing board does not negate a finding that RPV exists for that class. Under the CVRA, the history regarding class members’ success as candidates is only a factor that may be considered in determining the existence of RPV. (Ibid.)
What is the Remedy for CVRA violations?If a court finds that RPV exists, the CVRA requires it to implement an appropriate remedy. Usually, this involves the court ordering the agency to implement by-district elections. (Elec. Code., § 14029.) In by-district elections, candidates reside within election districts that are divisible parts of the political subdivision and are elected only by voters that reside within those districts. (Id., § 14026(b).)
Fortunately, the Legislature has provided a way for agencies to avoid having a judge decide such important—and fundamentally political—matters. In 2016, the Legislature enacted AB 350, which created a “safe harbor” by which agencies can voluntarily convert to by-district elections and avoid having to defend against CVRA lawsuits. (Id., § 10010.) In this legislation, the Legislature included a key enticement: in exchange for moving away from at-large voting systems, agencies can not only avoid litigation, but their exposure to a potential CVRA plaintiff’s attorney fees is limited to $30,000. Given the huge attorney fee awards some agencies had experienced in CVRA litigation, this cap on attorney fees was a big victory for local agencies.
How Should My District Respond to a CVRA Demand Letter?AB 350 changed the CVRA to require plaintiffs to first send a written notice to an agency before filing suit. After serving such a notice by certified mail, the plaintiff must wait at least 45 days before filing an action. (Elec. Code, § 10010(e)(1)-(2).) This gives the agency a safe-harbor period in which to consider whether to convert from at-large to by-district elections. If the agency chooses to proceed with the conversion process, it must adopt a resolution within the 45 days expressing its intention to do so. (Id., § 10010(d)(3)(A).)
If your agency decides to convert to by-district elections, the resolution it adopts must identify the steps that will be taken to facilitate the transition to by-district elections and the timeframe for the conversion process. (Id., § 10010(e)(3)(A).) Adoption of this resolution extends the safe-harbor period for avoiding a CVRA lawsuit by 90 days. (Id., § 10010(e)(3)(B).)
After adopting the resolution, your agency will be required to hold at least four public hearings. Initially, your agency must hold at least two hearings to gather input regarding the composition of the proposed new districts and timing of district elections. (Id., § 10010(a)(1).) These meetings must occur over a period of no more than 30 days. (Ibid.)
After the initial two meetings, your agency must then publish a draft map of the proposed districts. (Id., § 10010(a)(2).) If your agency proposes to stagger the elections of the new districts, it must also publish the proposed election sequence. (Ibid.) Following such publication, and within 45 days, your agency must then hold two public hearings to consider and adopt a final district map and election sequence. Elec. Code, § 10010(a)(2). (The first of these hearings cannot occur until at least seven days after publication of the draft map or maps. Ibid.) The district election system must be adopted by resolution. (Id., § 10650.)
How Are Districts Drawn?A number of factors go into the drawing of districts. As a starting point, to ensure the principle of “one person, one vote,” districts should include about the same number of persons in each district. Some variation in the populations of districts are permissible, but usually the variance should not exceed five percent above or below the average that should exist per district.
Generally, districts must also be contiguous and compact. These terms are technically distinct, but they combine to provide that districts must have some rational shape about them. Districts should follow visible features and boundaries when possible. Long, twisted, contorted, and oddly-shaped districts can suggest a desire to further ulterior motives. In theory—although not always in practice—the districting process should not take into account incumbency and partisan interests.
Importantly, districts should also attempt to preserve communities of interest. These are contiguous populations that share some common social or economic interests. Downtown corridors, historic districts, and subdivisions are examples—by no means exclusive—of areas that would be communities of interest.
When do By-District Elections Begin?Generally, incumbents should be allowed to serve out their terms. (Elec. Code, § 10650.) However, under the CVRA, agencies must “give special consideration to the purposes of the [CVRA]” and “take into account the preferences expressed by members of the districts.”
Delaying the creation of districts for the convenience of the existing elected officials may not remedy a CVRA violation.
For that reason, your district should implement district elections at the first election that follows the adoption of its resolution adopting by-district elections. One solution may be to start district elections for those seats that are up at that first election that follows and to assign the remaining districts to the seats that are up at the following election. If that approach is taken, district elections should begin immediately for the seat or seats that are likely to have the most members of the relevant protected class.
One final observation: 90 days is barely enough time to accomplish all that is required to convert to by-district elections. Your district will likely need to put other matters on hold while the process goes forward. Effective planning at the beginning of the process is essential.
Derek Cole is a co-founder of Cota Cole & Huber and Sean De Burgh is partner of the firm. Both specialize in municipal law and litigation. Mr. Cole can be reached by email at dcole@cotalawfirm.com and Mr. De Burgh at sdeburgh@cotalawfirm.com. Both can be reached by phone at 916.780.9009.