The California Voting Rights Act has created wealth for some attorneys and wreaked financial havoc on some cities, but has it leveled the playing field for minority voters and is it always warranted?
With the passage of the California Voting Rights Act (SB 976) in 2002, the state made some fundamental changes to minority voting rights law.
Beginning in January 2003, the California Voting Rights Act (CVRA), “altered established paradigms of proof and defenses under the federal Voting Rights Act and made it easier for plaintiffs in California to challenge voting practices that were alleged to be discriminatory.”
The consequences for violations of CVRA can be potentially significant from two perspectives. Firstly, it could result in municipalities and other groups like school districts, special districts, etc., changing an electoral system that could be legal from a federal perspective, in order to comply with CVRA. Secondly, the financial penalties for non-compliance are costly and can pose a significant burden to cities, counties, etc.
When the legislation passed, a key supporter, the Mexican American Legal Defense and Education Fund, noted in a press statement, “The bill makes it easier for California minorities to challenge ‘at-large’ elections.”
According to the League of California Cities, the CVRA is particularly focused on at-large systems. With at-large systems, governing boards/councils are elected by all voters in the jurisdiction.
In addition to bring focus to at-large elections, CVRA provided protection for minority electoral influence; streamlined the proof required for plaintiffs to prove under the ‘totality of circumstances’ that the votes of minority voters are being diluted; and provided new remedies in which a successful challenge under CVRA could result in a municipality, special district, etc. being ordered “to change to by-district systems in which a minority group will be empowered either to elect its preferred candidates, or influence the election outcome.” It laid the foundation for transition to by-district election systems where the candidate must live in the district and the district votes on its candidates to represent them.
From the beginning, CVRA was controversial as indicated by a legal challenge filed nearly twelve years ago. In Sanchez v. City of Modesto, a lower court found CVRA unconstitutional; however, in 2006, that ruling was overturned on appeal. Subsequently, the U.S. Supreme Court declined to hear the case. As a result, the law remained intact.
When CVRA passed, most California jurisdictions, especially the smaller ones like Perris, had at-large electoral systems. These systems and others were made vulnerable to challenge under CVRA provided, “plaintiffs can show that racially-polarized voting undercuts their ability to elect or influence the election of minority-preferred candidates.”
Before the passage of CVRA, only 28 California cities had by-district elections, today there are 66 cities that adhere to this electoral process. The City of Perris is now in the cross-hairs for potential litigation, as it considers whether to become number 67.
Elected representatives in Perris and their constituent supporters, on both sides of the issue, are in conflict over the city’s electoral future and worried about the potential “cost of resistance” if they are forced into a legal battle rather than acquiesce to veiled threats if they refuse to voluntarily change from their current at-large to a by-district electoral system.
The city’s hand on this issue, like other cities, school boards, special districts, etc. up and down the state, is being forced by Civil Rights Attorney and consumer advocate turned political activist, Kevin Shenkman.
The CVR CA included provisions that provides incentives for lawyers to sue. It does so by enabling them to collect their fees from the defendants when plaintiffs prevail in CVRA cases, but it prevents defendants from doing the same when the situation is reversed.
In early 2012, purportedly at the urging of the African-American caucus chair for the California Democratic party, Shenkman filed suit against the City of Palmdale for violating CVRA. The city settled three years later for approximately $4.7 million dollars.
Since then, Shenkman has initiated correspondence with nearly 30 cities and other agencies like school boards, etc. and encouraged them to change to bi-district elections or face a potential lawsuit—most have acquiesced to avoid legal costs most cannot afford—scared away from waging a legal battle by the costly experience of Palmdale.
In March, the Perris City Council held a brief discussion about by-district voting and requested a report for their further consideration after the 2016 election results could be analyzed. In the interim, the Council received a letter from Shenkman that alleged violations of CVRA.
Doug Johnson, consultant with National Geographics Corporation, who prepared the Perris report, advised of a new Assembly bill, AB 350, that prevents anyone from filing legal action for 45 days after a letter of notice is received; also, if the agency involved submits a response that states by-district voting is under consideration, it gains another 90 days before a suit can be filed. This is referred to as a “safe harbor.”
Last week, the Perris City Council considered whether to pursue this “safe harbor” approach to allow time for more consideration and discussion of the issue. During the council meeting, while speaking about municipalities that have already made the requested change, Johnson stressed to those in attendance, “It is not that these jurisdictions are violating any civil rights or voting rights. . . What is driving these changes is the one jurisdiction that tried to fight this. Palmdale had to pay the plaintiffs $4.7 million.” The Inland Empire City of Highland admitted liability in its case but fought over the remedy. In the end, the city paid a significant settlement.
In the last 18 months, according to Johnson, the Inland Empire has become ground zero regarding CVRA activity. “Almost every city in the area has been challenged and switched to by-district elections.” Now the Coachella Valley is feeling the heat, both Cathedral City and Indio are being challenged. Before CVRA, there were about five Inland Empire cities that had district elections, now there is only about six who don’t,” Johnson shared.
The City of Perris is an unusual jurisdiction, Johnson noted. Seventy-two percent of the population is Hispanic and the rest is evenly split between Whites and Blacks. In addition, all the city’s elected officials are members of protected groups-Latino and African American.
Although Perris appears to be on strong legal ground, Johnson noted that other municipalities in the state with minority councils who have fought CVRA challenges, lost. “No one has won one of these cases and it costs a half-million to one million dollars to defend against one of them. And, if you lose,” he cautioned, “you get stuck with the plaintiff’s legal fees, also.”
It was against this backdrop that the floor was opened for public comments. Fireworks exploded and it did not take long for things to get personal. Some speakers accused each other of being snakes, disingenuous; council members were called out for changing positions on the issue, and everyone had an opinion either for or against moving to by-district elections.
The discussion took a sordid turn when an active member of the community, Katherine Fields, herself an African American who favors by-district elections, made some very cutting remarks aimed at the three members of the council.
“I feel that we need districts,” she explained. “We say that we are versatile up there [indicating the dais where the council sat], but we are not. “Malcolm [Councilman Malcolm Corona] is mixed, he has a white mother; Rita [Councilwoman Rita Rogers] is mixed; also, David [Councilman David Starr Rabb] is mixed.
Fields continued, “So, if you look at that, we have no pure African American up there. So how can you say we are equally versatile up there. We are not.”
Fields further challenged the council, “And, when it comes to going to districts, you guys all ran on districts. All of a sudden, now you guys don’t want districts. Are you afraid of not getting reelected? You should be afraid you won’t get reelected if we don’t get districts. It seems to me you guys are not being fair with the community and the voters.” She concluded, “I hope you guys understand that if you don’t go districts, we are going to get sued and the city cannot afford that.”
Rabb immediately reacted and immediately challenged Fields comments about heritage before Mayor Michael Vargas regained control of the session and terminated the exchange between Rabb and Fields. Later in the meeting Rabb again commented on the Fields racial accusations and took responsibility for changing his posting on by-district elections. According to Rabb, although he held that position during the campaign, after moving from campaign mode to governing mode, “I’m all about accountability.”
Perhaps the most profound assessment of the evening was offered by Councilwoman Tonya Burke, after listening to the many combative public comments and first setting the record straight regarding rumors related to her position on by-district voting, in part she said, “I took an oath to serve all people of Perris and I took an oath not to use my personal agenda or my personal feelings. Often when I cast a vote I put my personal feeling aside and look for what is best for the city. This conversation should be about what is good for the entire city.”
When Mayor Vargas finally called for a vote, Corona made the motion, Rabb seconded, and the proposal to move Perris to by-district elections was quickly defeated. Burke, Rabb and Rogers voted, no. Corona and Vargas voted, yes.
When and if a CVRA lawsuit is filed against the city, it is uncertain whether the council will reconsider its decision or ask the voters to decide.