Developments Concerning the California Voting Rights Act Could Affect Special District Elections 
By Derek Cole,
partner of Cole Huber LLP
The California Voting Rights Act (“CVRA”) is a well-known statute. Many special districts have responded in recent years to demands by potential CVRA litigants to convert to district elections.
The legislature did not make any changes to the CVRA in the recently concluded legislative session. But this year, there was a significant court decision interpreting the act. There was also an important development involving the 2020 Census that may affect how special districts respond to potential CVRA lawsuits.
The Santa Monica Decision – On its Way to the Supreme Court
In July, the Second District Court of Appeal issued a long-awaited decision regarding the City of Santa Monica’s at-large elections. In 2018, a superior court had found the city’s method of electing city council members violated the CVRA. In a favorable decision for special districts, the Court of Appeal reversed, finding the plaintiffs had not proven their case. Santa Monica is the first appellate court to address the CVRA’s substantive requirements. The author of this article authored an amicus (“friend of the court”) brief on behalf of CSDA and the League of California Cities (League) in support of Santa Monica.
Shortly thereafter, the plaintiffs petitioned the State Supreme Court to review the Court of Appeal's decision. Several influential parties sent “friend of the court,” or “amicus,” letters supporting the petition for review—including the former legislators who authored the CVRA and the current Secretary of State. CSDA and League filed a letter opposing Supreme Court review in an effort to preserve this helpful precedent for local governments.
Unfortunately, the Supreme Court granted review, leaving the Court of Appeal decision no longer binding as authority. This case now proceeds to the highest court in the state to determine the substantive requirements that must be met by a plaintiff to prevail in a CVRA case. The Supreme Court has asked the parties to brief the following issue: What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?
The Court of Appeal in Santa Monica confirmed that CVRA plaintiffs must prove vote dilution in addition to racially polarized voting. The latter element—bloc voting that occurs when a protected class prefers candidates other voters do not—is a well-known requirement of the CVRA. But whether plaintiffs are also required to demonstrate vote dilution has been disputed. Vote dilution occurs when an election method impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or abridgement of the rights of voters who belong to a protected class.
In concluding proof of dilution was required, the Court of Appeal focused on the language of several CVRA sections. It observed that the legislature had referred to vote dilution and racially polarized voting together throughout the act. In multiple sections, the legislature used phrases that referred to both elements combined with the conjunctive, “and.” Because of the use of these phrases, the appellate court believed the language of the CVRA is clear in requiring proof of vote dilution and racially polarized voting.
Also of importance, the Court of Appeal held that the plaintiffs’ evidence did not offer sufficient proof of vote dilution. The court observed the protected class in the case would only make up 30% of one city-council district if the city switched to district elections. Compared to the 14% population of the protected class citywide, the court found this increase too small to meaningfully change the results of city elections.
Overall, Santa Monica is significant because it remains to be seen whether the California Supreme Court will confirm that vote dilution is a required element of proof in CVRA cases and that plaintiffs must show the change to district elections would meaningfully enhance protected-class voting power.
The Delay of 2020 Census Data
Another development affecting the CVRA is the likely delay in the release of the 2020 Census data. Because of the COVID-19 pandemic and the need to protect the health of census workers, the United Census Bureau has been slowed in completing this year’s census activities. As a result, the release of the census data that will be used to establish electoral districts for the next decade will be delayed. Whereas census data has usually been available to local governments in February or March following previous census years, such data may not be available next year until the summer.
The deadline for implementing district-based, or by-division, elections for the 2020 election cycle has passed. Special districts that have not yet converted to district-based elections, but that receive a written demand to do so, would implement district-based elections beginning with the 2022 election cycle. However, because of the delay in receiving 2020 Census data, the question arises as to what happens if a demand for district-based elections is received sometime before next summer, when the new census data is released.
By law, electoral districts must be drawn based on the data from the last decennial census. For this reason, special districts that receive demands to convert to district-based elections before the release of the 2020 Census data may—under a literal reading of Elections Code section 10010—have to complete the conversion process using 2010 Census Data. But if they do this, they would have to shortly undergo the redistricting process required by state law. Under Elections Code section 22000, every special district that has established district-based elections must redistrict to adjust district boundaries following the most recent census.
Because candidates could not start running in newly established district-based elections until 2022, it makes little practical sense to convert to district-based elections in the next several months, when only 2010 Census data would be available. Although the redistricting process is not as extensive as the initial districting process—only one public hearing is required to redistrict, while five hearings are required for initial creation of electoral districts—it still is wasteful for agencies to undergo the initial process using population data from a decade ago.
The most logical response to this dilemma is to suspend Election Code section 10010 timelines until the 2020 Census data are published. But unfortunately, the State Legislature has not yet seen fit to make such a change.
Since March, special districts have at least been able to rely on two of the Governor’s executive orders suspending Elections Code section 10010 deadlines in light of the COVID-19 public-health emergency. These orders remain in effect as of this writing. But once they expire or are rescinded, special districts may face the prospect of having to wastefully create electoral districts using 2010 Census Data before or during the first half of 2021.
This article was written by Derek Cole, Partner of Cole Huber LLP, as part of CSDA’s New Laws Series, where experts explain recently enacted laws and how they will impact special districts moving forward. He specializes in municipal law and has advised municipal clients on several matters involving the California Voting Rights Act. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised in these materials.
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